Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX has delivered or made available to Bergen a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified under Section 401(a) of the Code. (b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect. (c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"): (i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities. (d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect. (e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions. (f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 5 contracts
Samples: Merger Agreement (Frost Phillip Md Et Al), Merger Agreement (Bergen Brunswig Corp), Merger Agreement (Ivax Corp /De)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX Bergen or any IVAX Bergen Subsidiary, or with respect to which IVAX Bergen or any IVAX Bergen Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Bergen Benefit Plans"), IVAX Bergen has delivered or made available to Bergen IVAX a true and correct copy of (i) such IVAX Bergen Benefit Plan and the most recent summary plan description related to each IVAX Bergen Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Bergen Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX a Bergen Benefit Plan subject to Title IV of ERISA and (v) the most recent determination letter issued by the IRS with respect to any IVAX Bergen Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX Bergen Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Bergen Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Bergen Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with With respect to the IVAX Bergen Benefit Plans, no event has occurred and, to the knowledge of IVAXBergen, there exists no condition or set of circumstances in connection with which IVAX Bergen or any IVAX Bergen Subsidiary could be subject to any liability under the terms of such IVAX Bergen Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX a Bergen Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX a Bergen Material Adverse Effect, with respect to each IVAX Bergen Benefit Plan that is not subject to United States Law (an a "IVAX Bergen Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Bergen Foreign Benefit Plan required by Law or by the terms of such IVAX Bergen 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 IVAX Bergen Foreign Benefit Plan, the liability of each insurer for any IVAX Bergen Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Bergen Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX Bergen 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 IVAX Bergen Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d4.09(d) of the IVAX Bergen Disclosure Schedule, neither IVAX Bergen nor any IVAX Bergen Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX Bergen or any IVAX Bergen Subsidiary and no collective bargaining agreement is being negotiated by IVAX Bergen or any IVAX Bergen Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX Bergen or any IVAX Bergen Subsidiary pending or, to the knowledge of IVAXBergen, threatened which may interfere with the respective business activities of IVAX Bergen or any IVAX Bergen Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX a Bergen Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAXBergen, none of IVAXBergen, any IVAX Bergen Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX Bergen or any IVAX Bergen Subsidiary, and there is no charge or complaint against IVAX Bergen or any IVAX Bergen Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX a Bergen Material Adverse Effect.
(e) IVAX Bergen has delivered to Bergen IVAX true and complete copies of (i) all employment agreements with officers of IVAX Bergen and each IVAX Bergen Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX Bergen and each IVAX Bergen Subsidiary with or relating to their respective employees, employees and (iii) all plans, programs, agreements and other arrangements of IVAX Bergen and each IVAX Bergen Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f4.09(f) of the IVAX Bergen Disclosure Schedule or as otherwise required by Law, no IVAX Bergen Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 5 contracts
Samples: Merger Agreement (Ivax Corp /De), Merger Agreement (Frost Phillip Md Et Al), Merger Agreement (Bergen Brunswig Corp)
Employee Benefit Plans; Labor Matters. (a) With Except as set forth in Section 2.11(a) of the WWNI Disclosure Schedule with respect to each employee benefit plan, program, policy, arrangement and contract (including, without limitation, any "employee benefit plan", ," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ), maintained or contributed to at any time by IVAX WWNI or any IVAX Subsidiaryentity required to be aggregated with WWNI pursuant to Section 414 of the Code (each, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the a "IVAX Benefit PlansWWNI Employee Plan"), IVAX no event has delivered occurred and to the knowledge of WWNI, no condition or made available set of circumstances exists in connection with which WWNI could reasonably be expected to Bergen be subject to any liability which would have a true and correct copy of Material Adverse Effect on WWNI.
(i) such IVAX Benefit No WWNI Employee Plan is or has been subject to Title IV of ERISA or Section 412 of the Code; and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating WWNI Employee Plan intended to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified qualify under Section 401(a) of the CodeCode and each trust intended to qualify under Section 501(a) of the Code is the subject of a favorable Internal Revenue Service determination letter, and nothing has occurred which could reasonably be expected to adversely affect such determination.
(bc) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any Section 2.11(c) of the IVAX Benefit Plans WWNI Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement have been timely made or have been reflected on Agreement, of each person who holds any WWNI Stock Options, together with the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior number of WWNI Shares which are subject to such option, the date of grant of such option, the extent to which such option is vested (or will become vested as a result of the Merger), the option price of such option (to the extent determined as of the date hereof), whether such option is a nonqualified stock option or is intended to qualify as an incentive stock option within the meaning of Section 422(b) of the Code, and the expiration date of such option. Section 2.11(c) of the WWNI Disclosure Schedule also sets forth the total number of such incentive stock options and such nonqualified options. WWNI has furnished TCG with complete copies of the plans pursuant to which the WWNI Stock Options were issued. Other than the automatic vesting of WWNI Stock Options that may occur without any action on the part of WWNI or its officers or directors, WWNI has not taken any action that would result in any WWNI Stock Options that are unvested becoming vested in connection with or as a result of the execution and delivery of this Agreement. Except as Agreement or the consummation of the transactions contemplated hereby.
(d) WWNI has made available to TCG (i) a description of the terms of employment and compensation arrangements of all officers of WWNI and a copy of each such agreement currently in effect; (ii) copies of all agreements with consultants who are individuals obligating WWNI to make annual cash payments in an amount exceeding $60,000; (iii) a schedule listing all officers of WWNI who have executed a non-competition agreement with WWNI and a copy of each such agreement currently in effect; (iv) copies (or descriptions) of all severance agreements, programs and policies of WWNI with or relating to its employees, except programs and policies required to be maintained by law; and (v) copies of all plans, programs, agreements and other arrangements of WWNI with or relating to its employees which contain change in control provisions all of which are set forth in Section 3.09(b2.11(d) of the IVAX WWNI Disclosure Schedule.
(e) There shall be no payment, accrual of additional benefits, acceleration of payments, or vesting in any benefit under any WWNI Employee Plan or any agreement or arrangement disclosed under this Section 2.11 solely by reason of entering into or in connection with respect to the IVAX Benefit Plans, transactions contemplated by this Agreement.
(f) There are no event has occurred andcontroversies pending or, to the knowledge of IVAXWWNI, there exists no condition threatened, between WWNI and any of their employees, which controversies have or set of circumstances in connection with which IVAX or any IVAX Subsidiary could reasonably be subject expected to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX a Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX Effect on WWNI. Neither WWNI nor any IVAX Subsidiary of its subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by IVAX WWNI or any IVAX Subsidiary of its subsidiaries (and no neither WWNI nor any of its subsidiaries has any outstanding material liability with respect to any terminated collective bargaining agreement is being negotiated by IVAX or labor union contract), nor does WWNI know of any IVAX Subsidiaryactivities or proceedings of any labor union to organize any of its or employees. As of the date of this Agreement, there is WWNI has no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAXany strike, threatened which may interfere slowdown, work stoppage, lockout or threat thereof, by or with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, respect to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effectits employees.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 4 contracts
Samples: Acquisition Agreement (Worldwide Wireless Networks Inc), Acquisition Agreement (Worldwide Wireless Networks Inc), Acquisition Agreement (Worldwide Wireless Networks Inc)
Employee Benefit Plans; Labor Matters. (a) Section 3.11(a) of the Company Disclosure Schedules lists all material Company Benefit Plans.
(b) The Company has made available to Parent, with respect to each material Company Benefit Plan, each writing constituting a part of such Company Benefit Plan, including all amendments thereto.
(c) Except as would not have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Company Benefit Plan (including any related trusts) has been maintained and administered in compliance with its terms and with applicable Law, including ERISA and the Code to the extent applicable thereto; (ii) each Company Benefit 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 or is entitled to rely on a favorable opinion issued by the Internal Revenue Service, (iii) no Company Benefit Plan is subject to Title IV of ERISA, (iv) no employee benefit plan of the Company or its Subsidiaries is a Multiemployer Plan or a plan subject to Title IV of ERISA that has two or more contributing sponsors, at least two of whom are not under common control, (v) all contributions or other amounts payable by the Company or any of its Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with GAAP and (vi) there are no pending, threatened or, to the Knowledge of the Company, anticipated claims (other than claims for benefits in accordance with the terms of the Company Benefit Plans) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto.
(d) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or Multiemployer Plan contributed to by IVAX the Company or any IVAX SubsidiaryERISA Affiliate, or with respect to which IVAX or neither the Company nor any IVAX Subsidiary could incur ERISA Affiliate has incurred any withdrawal liability under Section 4069, 4212(c) or 4204 Title IV of ERISA which remains unsatisfied as to an amount that would reasonably be expected to result in, individually or in the aggregate, material liability to the Company and its Subsidiaries, taken as a whole.
(e) Except as provided in this Agreement or required by applicable Law, the "IVAX Benefit Plans")consummation of the transactions contemplated by this Agreement will not, IVAX has delivered either alone or made available to Bergen a true and correct copy of in combination with another event, (i) such IVAX Benefit Plan and entitle any current or former employee or director of the most recent summary plan description related Company or any of its Subsidiaries to each IVAX Benefit Plan for which a summary plan description is requiredseverance pay, or any other payment from the Company or its Subsidiaries, (ii) each trust agreement accelerate the time of payment or other funding arrangement relating vesting, or increase the amount of, compensation due to any such IVAX Benefit Planemployee or consultant, (iii) directly or indirectly cause the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), Company to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan or (iv) limit or restrict the most recent actuarial report right to merge, materially amend, terminate or financial statement relating to an IVAX transfer the assets of any Company Benefit Plan on or following the First Effective Time.
(f) The execution and (v) delivery of this Agreement, stockholder or other approval of this Agreement or the most recent determination letter issued consummation of the transactions contemplated by this Agreement would not, either alone or in combination with another event, result in the IRS with respect to payment of any IVAX Benefit Plan qualified under “excess parachute payment” as defined Section 401(a280G(b)(1) of the Code.
(bg) Each IVAX The Company is not a party to nor does it have any obligation under any Company Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms compensate, indemnify or reimburse any person for excise Taxes payable pursuant to Section 4999 of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or for additional Taxes payable pursuant to Section 409A of the Code.
(h) The Company and its Subsidiaries are in compliance with their obligations pursuant to all notification and bargaining obligations arising under any other applicable Law which Company Labor Agreements, except as would not have, individually or in the aggregate have an IVAX aggregate, a Company Material Adverse Effect.
(ci) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effectreasonably be expected to result in, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law individually or by in the terms of such IVAX Foreign Benefit Plan have been made oraggregate, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the material liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, with respect to all current and former participants in such plan according to the actuarial assumptions Company and valuations most recently used to determine employer contributions to such IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except its Subsidiaries, taken as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As whole as of the date of this Agreement, (A) there are no strikes or lockouts with respect to any employees of the Company or any of its Subsidiaries; (B) to the Knowledge of the Company, there is no union organizing effort pending or threatened against the Company or any of its Subsidiaries; (C) there is no labor dispute, strike dispute or work stoppage against IVAX or any IVAX Subsidiary labor arbitration proceeding pending or, to the knowledge Knowledge of IVAXthe Company, threatened which may interfere with against the respective business activities of IVAX Company or any IVAX Subsidiaryof its Subsidiaries (other than, except where such disputein each case, strike routine grievances, including those brought by unions or other collectively represented employees, to be heard by the applicable Governmental Entity); and (D) there is no slowdown, or work stoppage in effect or, to the Knowledge of the Company, threatened with respect to employees of the Company or any of its Subsidiaries;.
(j) Except as would not have an IVAX have, individually or in the aggregate, a Company Material Adverse Effect. As , since December 31, 2018, the Company and its Subsidiaries have complied with all applicable Laws with respect to employment and employment practices (including all applicable Laws, rules and regulations regarding wage and hour requirements, employee and worker classification, immigration status, discrimination in employment, harassment, employee health and safety, and collective bargaining).
(k) The consent or consultation of, or the rendering of formal advice by, any labor or trade union, works council or similar organization is not required for the Company to enter into this Agreement or to consummate any of the transactions contemplated hereby other than any consent, consultation or formal advice, the failure of which to obtain or, in the case of consultation, engage in, would not delay or prevent the consummation of the transactions contemplated by this Agreement or otherwise reasonably be expected to result in, individually or in the aggregate, material liability to the Company and its Subsidiaries, taken as a whole as of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 4 contracts
Samples: Voting Trust Agreement (Canadian Pacific Railway LTD/Cn), Merger Agreement (Canadian Pacific Railway LTD/Cn), Merger Agreement (Kansas City Southern)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ), sponsored, maintained or contributed to, or to which there is an obligation to contribute, by IVAX or any IVAX SubsidiaryB, or with respect to which IVAX or any IVAX Subsidiary B could incur liability under Section Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit PlansB BENEFIT PLANS"), IVAX B has delivered or made available to Bergen A and the Company a true and correct copy of (i) such IVAX B Benefit Plan and all amendments thereto and the most recent summary plan description related to each IVAX B Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or and/or financial statement statement, if any, relating to an IVAX any B Benefit Plan and Plan, (v) the most recent determination letter letter, if any, issued by the IRS with respect to any IVAX B Benefit Plan qualified under Section SECTION 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten B Benefit Plans, if any.
(b) Each IVAX To the knowledge of B, each B Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX B Benefit Plans as of the date of this Agreement hereof have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX B SEC Reports prior to the date of this Agreementhereof. Except as set forth in Section 3.09(b) All of the IVAX Disclosure ScheduleB Benefit Plans are in compliance with all applicable requirements of Law, with respect including ERISA and the Code, except to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or extent that any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which non-compliance would individually or in the aggregate not have an IVAX a B Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) There are no pending actions, claims or lawsuits that have been asserted regarding the B Benefit Plans directly or, to the knowledge of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse EffectB, against any fiduciary of any B Benefit Plan with respect to each IVAX Benefit Plan that is not subject to United States Law their operation (an "IVAX Foreign Benefit Plan"):
(iother than routine benefit claims) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued which could result in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiesliability.
(d) Except as set forth in There is no B Benefit Plan that is a "multiemployer plan" (within the meaning of Section 3.09(d3(37) of ERISA).
(e) Each B Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with Section 601 et seq. of ERISA, the IVAX Disclosure ScheduleHealth Insurance Portability and Accountability Act and any other applicable federal, neither IVAX nor any IVAX Subsidiary state or local Law.
(f) B is not a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or B and is not negotiating any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiaryagreements. As of the date of this Agreementhereof, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary B pending or, to the knowledge of IVAXB, threatened in writing which may interfere with the respective business activities of IVAX or any IVAX SubsidiaryB, except where such dispute, strike or work stoppage would not have an IVAX a B Material Adverse Effect. As of the date of this Agreementhereof, to the knowledge of IVAXB, none of IVAX, any IVAX Subsidiary, B or any of their respective its representatives or employees employees, has committed any unfair labor practice practices in connection with the operation of the respective businesses business of IVAX or any IVAX SubsidiaryB, and there is no charge or complaint against IVAX or any IVAX Subsidiary B by the National Labor Relations Board or any comparable governmental federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX a B Material Adverse Effect.
(eg) IVAX B has delivered to Bergen A true and complete correct copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, B; (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary B with or relating to their respective its employees, and ; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under Section 162(m) of IVAX the Code; and each IVAX Subsidiary (iv) all plans, programs, agreements and other arrangements of B with or relating to their respective its employees which contain "change of control" in control provisions.
(fh) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX B Benefit Plan provides provides, or has liability with respect to, retiree medical or other retiree life insurance welfare benefits to any person.
(i) B is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of Section 280G of the Code (disregarding Section 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of B to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of B; (iii) reasonably be expected to result in any "excess parachute payment" under Section 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) B has no material liability, whether absolute or contingent, including any material obligations under any B Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) B has not entered into any transaction with any B Benefit Plan.
(m) SECTION 3.10(m) of the B Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with B and the amount of cash severance payments to which each such person would be entitled thereunder and (ii) with respect to any formal or informal severance program, plan or arrangement of B that does not involve an individual agreement between B and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(n) SECTION 3.10(n) of the B Disclosure Schedule sets forth a true and correct list of all persons who hold B Options, and sets forth, for each such person, (i) the number of shares of B Common Stock underlying the B Options held by such person as of the date hereof, (ii) the exercise price per share with respect to each such B Option, (iii) the expiration date for such B Option, and (iv) the Cash-Out Amount (as defined below) with respect to the B Options (whether or not vested) that are held by such person. For purposes of this Agreement, "CASH-OUT AMOUNT" shall mean, with respect to each share of B Common Stock underlying a B Option (whether or not vested), $4.00 minus the exercise price per share of such B Option.
(o) To the knowledge of B based on a good faith interpretation of the Air Transportation Safety and System Stabilization Act (the "STABILIZATION ACT"), (i) except as set forth in Section 3.10(o) of the B Disclosure Schedule, no B employee's or officer's "total compensation" (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), B has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under Section 101(a)(1) of the Stabilization Act.
Appears in 3 contracts
Samples: Merger Agreement (Airline Investors Partnership Lp), Merger Agreement (Brenneman Gregory D), Merger Agreement (Hawaiian Airlines Inc/Hi)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section SECTION 3(3) of the Employee Retirement Income Security Act of 1974ERISA, as amended ("ERISA")) sponsored, maintained or contributed to, or to which there is an obligation to contribute, by IVAX or any IVAX SubsidiaryA, or with respect to which IVAX or any IVAX Subsidiary A could incur liability under Section Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit PlansA BENEFIT PLANS"), IVAX A has delivered or made available to Bergen B and the Company a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or and/or financial statement statement, if any, relating to an IVAX A Benefit Plan and Plan, (v) the most recent determination letter letter, if any, issued by the IRS with respect to any IVAX A Benefit Plan qualified under Section SECTION 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) Each IVAX To the knowledge of A, each A Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX A Benefit Plans as of the date of this Agreement hereof have been timely made or have been reflected on the A's most recent consolidated balance sheet filed or incorporated by reference sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the IVAX Reports prior Code, except to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or extent that any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which noncompliance would individually or in the aggregate not have an IVAX A Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse EffectA, against any fiduciary of any A Benefit Plan with respect to each IVAX Benefit Plan that is not subject to United States Law their operation (an "IVAX Foreign Benefit Plan"):
(iother than routine benefit claims) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued which could result in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiesliability.
(d) Except as set forth in Section 3.09(dThere is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the IVAX Disclosure ScheduleHealth Insurance Portability and Accountability Act and any other applicable federal, neither IVAX state or local law.
(f) Neither A nor any IVAX Subsidiary subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX A or any IVAX Subsidiary subsidiary of A and no neither A nor any subsidiary of A is negotiating any collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiaryagreements. As of the date of this Agreementhereof, there is no labor dispute, strike or work stoppage against IVAX A or any IVAX Subsidiary subsidiary of A pending or, to the knowledge of IVAXA, threatened in writing which may interfere with the respective business activities of IVAX or any IVAX SubsidiaryA, except where such dispute, strike or work stoppage would not have an IVAX A Material Adverse Effect. As of the date of this Agreementhereof, to the knowledge of IVAXA, none of IVAX, any IVAX Subsidiary, A or any subsidiary of A or their respective representatives or employees employees, has committed any unfair labor practice practices in connection with the operation of the respective businesses business of IVAX A or any IVAX Subsidiaryof its subsidiaries, and there is no charge or complaint against IVAX A or any IVAX Subsidiary subsidiary of A by the National Labor Relations Board or any comparable governmental federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX A Material Adverse Effect.
(eg) IVAX A has delivered to Bergen B true and complete correct copies of (i) all employment agreements with officers of IVAX A and each IVAX Subsidiary providing for annual compensation in excess the subsidiaries of $250,000, A; (ii) all severance plans, agreements, programs and policies of IVAX A and each IVAX Subsidiary the subsidiaries of A with or relating to their respective employees, and ; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of IVAX the Code; and each IVAX Subsidiary (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain "change of control" in control provisions.
(fh) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX A Benefit Plan provides provides, or has liability with respect to, retiree medical or other retiree life insurance welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 3 contracts
Samples: Merger Agreement (Airline Investors Partnership Lp), Merger Agreement (Brenneman Gregory D), Merger Agreement (Hawaiian Airlines Inc/Hi)
Employee Benefit Plans; Labor Matters. (a) With respect to each Each employee benefit plan, program and arrangement, and each employment, termination, severance or other contract or agreement, to which MeriStar or any of the MeriStar Subsidiaries is a party with respect to which MeriStar or any of the MeriStar Subsidiaries has any obligation or which are maintained, contributed to or sponsored by MeriStar or any of the MeriStar Subsidiaries for the benefit of any current or former employee, officer or director of MeriStar or any of the MeriStar Subsidiaries under which plan, program, arrangement arrangement, contract or agreement total payments of more than $100,000 may be required to be made by MeriStar or a MeriStar Subsidiary (collectively, the "MeriStar Benefit Plans") are listed on Section 3.10(a) of the MeriStar Disclosure Letter. Except for those matters listed on Section 3.10(a) of the MeriStar Disclosure Letter and contract such matters as, individually or in the aggregate, have not and could not reasonably be expected to result in a Material Adverse Effect on MeriStar:
(includingi) to the knowledge of MeriStar, without limitationeach MeriStar Benefit Plan and any related trust intended to be qualified under Sections 401(a) and 501(a) of the Code has received a favorable determination letter from the IRS that it is so qualified, and to the knowledge of MeriStar, nothing has occurred since the date of such letter that could materially adversely affect the qualified status of such MeriStar Benefit Plan or related trust;
(ii) to the knowledge of MeriStar, each MeriStar Benefit Plan has been operated in accordance with the terms and requirements of applicable Law, and all required returns and filings for each MeriStar Benefit Plan have been timely made;
(iii) to the knowledge of MeriStar, neither MeriStar nor any "employee benefit plan"of the MeriStar Subsidiaries has incurred any direct or indirect liability under, as defined in Section 3(3) arising out of or by operation of Title I or Title IV of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or comparable provisions of the Code in connection with any MeriStar Benefit Plan or other retirement plan or arrangement, and to the knowledge of MeriStar, no fact or event exists that could reasonably be expected to give rise to any such liability;
(iv) to the knowledge of MeriStar, all contributions due and payable on or before the date hereof in respect of each MeriStar Benefit Plan have been made in full and in proper form;
(v) to the knowledge of MeriStar, neither MeriStar nor any of the MeriStar Subsidiaries has ever sponsored or been obligated to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA), "multiple employer plan" (as defined in Section 413 of the Code) or "defined benefit plan" (as defined in Section 3(35) of ERISA);
(vi) except as otherwise required under ERISA, the Code and applicable Law, to the knowledge of MeriStar, no MeriStar Benefit Plan currently or previously maintained or contributed to by IVAX MeriStar or any IVAX Subsidiaryof the MeriStar Subsidiaries provides any post-retirement health or life insurance benefits in the future;
(vii) to the knowledge of MeriStar, or all reporting and disclosure obligations imposed under ERISA and the Code have been satisfied with respect to each MeriStar Benefit Plan; and
(viii) to the knowledge of MeriStar, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in the payment of separation, severance, termination, "golden parachute" or similar-type benefits to any person, (B) materially increase any benefits otherwise payable under any MeriStar Benefit Plan or otherwise, (C) result in any acceleration of the time of payment or vesting of any material benefits, (D) trigger a requirement for funding or the acceleration of funding of any material benefits or (E) commence a period during which IVAX a subsequent termination of employment by an employee of MeriStar or any IVAX MeriStar Subsidiary could incur liability will entitle such employee to benefits in excess of what would otherwise have been required in the absence of the transactions contemplated hereby. No benefit or amount payable or that may become payable by MeriStar or any of the MeriStar Subsidiaries as a result of any transaction contemplated by this Agreement will constitute an "excess parachute payment," within the meaning of Section 280G of the Code, which is or may be subject to the imposition of any excise tax under Section 4069, 4212(c) 4999 of the Code or 4204 which would not be deductible by reason of ERISA (the "IVAX Benefit Plans"), IVAX has delivered or made available to Bergen a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified under Section 401(a) 280G of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to To the knowledge of IVAXMeriStar, there exists no condition or set each MeriStar Benefit Plan is in writing, and MeriStar has made available to ASC a complete and accurate copy of circumstances each MeriStar Benefit Plan and a complete and accurate copy of each material document prepared in connection with which IVAX each such Plan, including without limitation, a copy of (i) each trust or any IVAX Subsidiary could be subject to any liability under other funding arrangement, (ii) each summary plan description and summary of material modification, (iii) the terms of most recently filed IRS Form 5500, (iv) the most recently received IRS determination letter for each such IVAX Benefit PlansPlan, ERISA, and (v) the Code or any other applicable Law which would individually or most recently prepared actuarial report and financial statement in the aggregate have an IVAX Material Adverse Effectconnection with each such Plan.
(c) Except as set forth in Section 3.09(c3.10(c) of the IVAX MeriStar Disclosure Schedule or except as would not have an IVAX Material Adverse EffectLetter, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms knowledge of such IVAX Foreign Benefit Plan have been made orMeriStar, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market value neither MeriStar nor any of the assets MeriStar Subsidiaries is a party to, or is bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or other labor union organization. MeriStar has made available true, correct and complete copies of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient all such agreements to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) ASC. Except as set forth in Section 3.09(d3.10(c) of the IVAX MeriStar Disclosure ScheduleLetter and except as individually or in the aggregate, neither IVAX nor any IVAX Subsidiary is has not resulted and would not reasonably be expected to result, in a party to any Material Adverse Effect on MeriStar, (A) currently there are no organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining or other labor union contract applicable to persons employed by IVAX unit which could affect MeriStar or any IVAX Subsidiary and MeriStar Subsidiary; (B) there are no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreementcontroversies, there is no labor disputestrikes, strike slowdowns or work stoppage against IVAX or any IVAX Subsidiary stoppages pending or, to the best knowledge of IVAXMeriStar, after due inquiry, threatened which may interfere with the respective business activities of IVAX between MeriStar or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or MeriStar Subsidiaries and any of their respective representatives employees, and neither MeriStar nor any of the MeriStar Subsidiaries has experienced any such controversy, strike, slowdown or employees work stoppage within the past three years; (C) neither MeriStar or any of the MeriStar Subsidiaries has committed breached or otherwise failed to comply with the provisions of any collective bargaining or union contract and there are no grievances outstanding against MeriStar or any MeriStar Subsidiary under any such agreement or contract; and (D) there are no unfair labor practice in connection with the operation complaints pending against MeriStar or any of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by MeriStar Subsidiaries before the National Labor Relations Board or any comparable governmental agency pending other Governmental Entity or threatened in writing, except where such unfair labor practice, charge any current union representation questions involving employees of MeriStar or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) any of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any personMeriStar Subsidiaries.
Appears in 3 contracts
Samples: Merger Agreement (American Skiing Co /Me), Agreement and Plan of Merger (Meristar Hotels & Resorts Inc), Merger Agreement (Oak Hill Capital Partners L P)
Employee Benefit Plans; Labor Matters. (a) With respect to Section 4.9(a) of the Company Disclosure Statement sets forth a true and complete list as of the date of this Agreement of each material employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", plan as defined in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) , maintained or contributed to by IVAX the Company or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA its Subsidiaries (the "IVAX Benefit PlansCOMPANY BENEFIT PLANS"). With respect to each Company Benefit Plan, IVAX the Company has heretofore delivered or made will deliver or make available to Bergen Tribune within 30 days of the date of this Agreement a true true, correct and correct complete copy of of: (i) such IVAX each Company Benefit Plan Plan, including all plan documents, trust agreements, and insurance contracts and other funding vehicles; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description related and any material modifications thereto, if any (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiiv) the most recent annual report financial report, if any; (Form 5500v) filed with the most recent actuarial report, if any; and (vi) the most recent determination letter from the Internal Revenue Service (the "IRS"), if any. Except as provided in the foregoing documents delivered to Tribune and except as provided in Section 4.9(a) of the Company Disclosure Statement, there are no amendments to any Company Benefit Plan that have been adopted or approved nor has the Company or any Company Subsidiary undertaken to make any such amendments or to adopt or approve any new Plan which would reasonably be expected to have a material impact on the liabilities of the Company Benefit Plan.
(ivb) With respect to each Company Benefit Plan which is subject to Title IV of ERISA, or Section 302 of ERISA or Section 412 or 4971 of the Code, (i) the present value of accrued benefits under such Company Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report or financial statement relating prepared by such Company Benefit Plan's actuary with respect to an IVAX such Company Benefit Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Company Benefit Plan and allocable to such accrued benefits except with respect to one employee pension benefit plan maintained by a Subsidiary of the Company, in which case such excess is not greater than $10 million, (vii) no "reportable event" (within the most recent determination letter issued by the IRS meaning of Section 4043 of ERISA) has occurred with respect to any IVAX Company Benefit Plan qualified for which the 30-day notice requirement has not been waived, (iii) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (iv) all premiums to the Pension Benefit Guaranty Corporation ("PBGC") have been timely paid in full, (v) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is reasonably expected to be incurred by the Company or any of its Subsidiaries and (vi) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan and, to the Company's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Benefit Plan, except where the failure of any of the foregoing to be true would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or prevent or materially delay the consummation of the Offer or the Merger. Section 4.9(b) of the Company Disclosure Statement sets forth all "multiemployer pension plans" (as such term is defined in section 3(37) of ERISA) (a "MULTIEMPLOYER PLAN") or all plans that have two or more contributing sponsors at least one of whom are not under common control, within the meaning of Section 4063 of ERISA (a "MULTIPLE EMPLOYER PLAN") of the Company or any Subsidiary of the Company. Total withdrawal liability of all such multiemployer plans, if triggered, would not create a Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates has incurred any withdrawal liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan that has not been satisfied in full. None of the withdrawal liabilities of the Company and/or any of its Subsidiaries for each Multiemployer Plan, if triggered, would reasonably be expected to have a Material Adverse Effect on the Company or prevent or materially delay the Offer or the Merger.
(c) Each of the Company Benefit Plans has been operated and administered in accordance with applicable Laws and administrative rules and regulations under ERISA and the Code, except where a violation of any such Law, rule or regulation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or prevent or materially delay the consummation of the Offer or the Merger. Each of the Company Benefit Plans intended to be "qualified" within the meaning of Section 401(a) of the Code.
(b) Each IVAX Benefit Plan Code has been administered in all material respects in accordance with its terms received a favorable determination letter as to such qualification from the IRS, and all contributions required to be made under the terms no event has occurred, either by reason of any action or failure to act, which would cause the loss of any such qualification, except where such action or failure to act can be cured without reasonably being expected to have, individually or in the aggregate, a Material Adverse Effect on the Company or prevent or materially delay the consummation of the IVAX Benefit Plans as of Offer or the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this AgreementMerger. Except as set forth in Section 3.09(b4.9(c) of the IVAX Company Disclosure ScheduleStatement, no Company Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees of the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX Company or any IVAX Subsidiary could be subject thereof beyond their retirement or other termination of service, other than death benefits or retirement benefits under any "employee pension plan" (as such term is defined in Section 3(2) of ERISA). All contributions or other amounts payable by the Company or any Subsidiary thereof as of the Effective Time with respect to any liability under each Company Benefit Plan have been timely paid or accrued in accordance with the terms of each such IVAX Company Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Plan. Except as set forth in Section 3.09(c4.9(c) of the IVAX Company Disclosure Schedule or except as would not have an IVAX Material Adverse EffectStatement, with respect to each IVAX Benefit Plan that is not and subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer Tribune's obligations under Section 6.9, neither the execution and employee contributions to each IVAX Foreign Benefit Plan required by Law or by delivery of this Agreement nor the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market value consummation of the assets of each funded IVAX Foreign transactions contemplated hereby will (A) result in a restriction on Tribune's ability to amend, modify or terminate any Company Benefit Plan, the liability of each insurer (B) trigger a requirement for any IVAX Foreign Benefit Plan funded through insurance funding or the book reserve established for acceleration of funding of any IVAX Foreign Company Benefit Plan, together with any accrued contributions, is sufficient (C) commence a period during which a subsequent termination of employment by a Company Employee will entitle such Company Employee to procure or provide for benefits in excess of what would otherwise have been required in the accrued benefit obligations, as absence of the Effective Time, with respect to all current and former participants transactions contemplated hereby or (D) result in such plan according to a reportable event within the actuarial assumptions and valuations most recently used to determine employer contributions to such IVAX 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
(iiimeaning of Section 4043(c) each IVAX Foreign Benefit Plan required to be registered of ERISA for which a notice requirement has not been registered and has been maintained in good standing with the appropriate regulatory authoritieswaived.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any No collective bargaining agreement or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX the Company or any IVAX SubsidiarySubsidiary thereof. As of the date of this Agreement, there There is no labor dispute, strike strike, slowdown or work stoppage against IVAX the Company or any IVAX Subsidiary thereof pending or, to the knowledge of IVAXthe Company, threatened which may interfere with that, individually or in the respective business activities of IVAX or any IVAX Subsidiaryaggregate, except where such dispute, strike or work stoppage would not reasonably be expected to have an IVAX a Material Adverse Effect. As Effect on the Company or prevent or materially delay the consummation of the date of this Agreement, to Offer or the Merger. To the knowledge of IVAXthe Company, none of IVAXthe Company, any IVAX Subsidiary, Subsidiary thereof or any of their respective representatives or employees has committed any unfair labor practice practices in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiarythe Company and its Subsidiaries, and there is no charge or complaint against IVAX the Company or any IVAX Subsidiary thereof by the National Labor Relations Board or any comparable governmental state or foreign agency pending or threatened in writingor, to the knowledge of the Company, threatened, except where such unfair labor practice, charge or complaint would not not, individually or in the aggregate, reasonably be expected to have an IVAX a Material Adverse EffectEffect on the Company or prevent or materially delay the consummation of the Offer or the Merger.
(e) IVAX The Company has delivered identified in Section 4.9(e) of the Company Disclosure Statement and has made available to Bergen Tribune true and complete copies of (i) all severance and employment agreements with directors and executive officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, the Company; (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary the Company with or relating to their respective its employees, ; and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary the Company with or relating to their respective its employees which contain "change in control provisions. Except as set forth in Section 4.9(e) of control" provisionsthe Company Disclosure Statement, to the knowledge of the Company, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event, such as termination of employment) (A) result in any material payment (including severance, unemployment compensation, golden parachute or otherwise) becoming due to any director or any employee of the Company or any Subsidiary thereof or Affiliate from the Company or any Subsidiary thereof or Affiliate under any Company Benefit Plan or otherwise, (B) materially increase any benefits otherwise payable under any Company Benefit Plan or (C) result in any acceleration of the time of payment or vesting of any material benefits.
(f) Except as provided set forth in Section 3.09(f4.9(e) of the IVAX Company Disclosure Schedule or as otherwise required by LawStatement, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits neither the Company nor any Subsidiary thereof is a party to any personContract, plan, or arrangement under which it is obligated to make or to provide, or could become obligated to make or to provide, a payment or benefit that would be nondeductible under Section 162(m) or 280G of the Code.
Appears in 3 contracts
Samples: Merger Agreement (Tribune Co), Merger Agreement (Stinehart William Jr), Merger Agreement (Stinehart William Jr)
Employee Benefit Plans; Labor Matters. (a) Section 3.11(a) of the Company Disclosure Schedules lists all material Company Benefit Plans.
(b) The Company has made available to Parent, with respect to each material Company Benefit Plan, each writing constituting a part of such Company Benefit Plan, including all amendments thereto.
(c) Except as would not have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Company Benefit Plan (including any related trusts) has been maintained and administered in compliance with its terms and with applicable Law, including ERISA and the Code to the extent applicable thereto; (ii) each Company Benefit 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 or is entitled to rely on a favorable opinion issued by the Internal Revenue Service, (iii) no Company Benefit Plan is subject to Title IV of ERISA, (iv) no employee benefit plan of the Company or its Subsidiaries is a Multiemployer Plan or a plan subject to Title IV of ERISA that has two or more contributing sponsors, at least two of whom are not under common control, (v) all contributions or other amounts payable by the Company or any of its Subsidiaries with respect to each Company Benefit Plan in respect of current or prior plan years have been paid or accrued in accordance with GAAP and (vi) there are no pending, threatened or, to the Knowledge of the Company, anticipated claims (other than claims for benefits in accordance with the terms of the Company Benefit Plans) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto.
(d) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or Multiemployer Plan contributed to by IVAX the Company or any IVAX SubsidiaryERISA Affiliate, or with respect to which IVAX or neither the Company nor any IVAX Subsidiary could incur ERISA Affiliate has incurred any withdrawal liability under Section 4069, 4212(c) or 4204 Title IV of ERISA which remains unsatisfied as to an amount that would reasonably be expected to result in, individually or in the aggregate, material liability to the Company and its Subsidiaries, taken as a whole.
(e) Except as provided in this Agreement or required by applicable Law, the "IVAX Benefit Plans")consummation of the transactions contemplated by this Agreement will not, IVAX has delivered either alone or made available to Bergen a true and correct copy of in combination with another event, (i) such IVAX Benefit Plan and entitle any current or former employee or director of the most recent summary plan description related Company or any of its Subsidiaries to each IVAX Benefit Plan for which a summary plan description is requiredseverance pay, or any other payment from the Company or its Subsidiaries, (ii) each trust agreement accelerate the time of payment or other funding arrangement relating vesting, or increase the amount of, compensation due to any such IVAX Benefit Planemployee or consultant, (iii) directly or indirectly cause the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), Company to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan or (iv) limit or restrict the most recent actuarial report right to merge, materially amend, terminate or financial statement relating to an IVAX transfer the assets of any Company Benefit Plan on or following the Effective Time.
(f) The execution and (v) delivery of this Agreement, stockholder or other approval of this Agreement or the most recent determination letter issued consummation of the transactions contemplated by this Agreement would not, either alone or in combination with another event, result in the IRS with respect to payment of any IVAX Benefit Plan qualified under “excess parachute payment” as defined Section 401(a280G(b)(1) of the Code.
(bg) Each IVAX The Company is not a party to nor does it have any obligation under any Company Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms compensate, indemnify or reimburse any person for excise Taxes payable pursuant to Section 4999 of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or for additional Taxes payable pursuant to Section 409A of the Code.
(h) The Company and its Subsidiaries are in compliance with their obligations pursuant to all notification and bargaining obligations arising under any other applicable Law which Company Labor Agreements, except as would not have, individually or in the aggregate have an IVAX aggregate, a Company Material Adverse Effect.
(ci) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effectreasonably be expected to result in, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law individually or by in the terms of such IVAX Foreign Benefit Plan have been made oraggregate, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the material liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, with respect to all current and former participants in such plan according to the actuarial assumptions Company and valuations most recently used to determine employer contributions to such IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except its Subsidiaries, taken as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As whole as of the date of this Agreement, (A) there are no strikes or lockouts with respect to any employees of the Company or any of its Subsidiaries; (B) to the Knowledge of the Company, there is no union organizing effort pending or threatened against the Company or any of its Subsidiaries; (C) there is no labor dispute, strike dispute or work stoppage against IVAX or any IVAX Subsidiary labor arbitration proceeding pending or, to the knowledge Knowledge of IVAXthe Company, threatened which may interfere with against the respective business activities of IVAX Company or any IVAX Subsidiaryof its Subsidiaries (other than, except where such disputein each case, strike routine grievances, including those brought by unions or other collectively represented employees, to be heard by the applicable Governmental Entity); and (D) there is no slowdown, or work stoppage in effect or, to the Knowledge of the Company, threatened with respect to employees of the Company or any of its Subsidiaries;.
(j) Except as would not have an IVAX have, individually or in the aggregate, a Company Material Adverse Effect. As , since December 31, 2018, the Company and its Subsidiaries have complied with all applicable Laws with respect to employment and employment practices (including all applicable Laws, rules and regulations regarding wage and hour requirements, employee and worker classification, immigration status, discrimination in employment, harassment, employee health and safety, and collective bargaining).
(k) The consent or consultation of, or the rendering of formal advice by, any labor or trade union, works council or similar organization is not required for the Company to enter into this Agreement or to consummate any of the transactions contemplated hereby other than any consent, consultation or formal advice, the failure of which to obtain or, in the case of consultation, engage in, would not delay or prevent the consummation of the transactions contemplated by this Agreement or otherwise reasonably be expected to result in, individually or in the aggregate, material liability to the Company and its Subsidiaries, taken as a whole as of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 2 contracts
Samples: Merger Agreement (Canadian National Railway Co), Merger Agreement (Kansas City Southern)
Employee Benefit Plans; Labor Matters. (a) Section 4.14(a) of the Company Disclosure Schedule contains a complete and correct list of all benefit plans, arrangements, commitments and payroll practices
(b) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of Benefit Plan required to be listed on the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX has delivered or made available to Bergen a true and correct copy of Company Disclosure Schedule: (i) such IVAX each Benefit Plan has been administered in compliance with its terms, and is in compliance in all material respects with the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is requiredapplicable provisions of ERISA, the Code and all other applicable Laws; (ii) each trust agreement Company has made or other funding arrangement relating to provided for all contributions required under the terms of such IVAX Benefit Plan, Plans; (iii) there have been no "prohibited transactions" (as described in Section 4975 of the most recent annual report (Form 5500Code or in Part 4 of Subtitle B of Title I of ERISA) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan; (iv) there are and during the past three years there have been no inquiries, proceedings, claims or suits pending or threatened by any governmental agency or authority or by any participant or beneficiary against any of the Benefit Plans, the assets of any of the trusts under such Benefit Plans or the Benefit Plan qualified under sponsor, or against any fiduciary of any of such Benefit Plans with respect to the design or operation of the Benefit Plans; (v) each Employee Pension Benefit Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code.
(b) Each IVAX , and any trust created pursuant to any such Employee Pension Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required that is intended to be made exempt from federal income tax under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b501(a) of the IVAX Disclosure ScheduleCode, has been issued a favorable determination letter which is currently applicable; and (vi) neither Company, any subsidiary of Company nor any ERISA Affiliate is aware of any circumstance or event which would jeopardize the tax-qualified status of any such Employee Pension Benefit Plan or the tax-exempt status of any related trust, or which would cause the imposition of any liability, penalty or tax under ERISA or the Code with respect to the IVAX any Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse EffectPlan.
(c) Except as set forth in Section 3.09(c) Neither Company, any subsidiary of the IVAX Disclosure Schedule Company nor any ERISA Affiliate maintains or except as would not have an IVAX Material Adverse Effect, with respect has ever maintained or been obligated to each IVAX Benefit Plan that is not subject contribute to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.Employee
Appears in 2 contracts
Samples: Merger Agreement (Kulicke & Soffa Industries Inc), Merger Agreement (Kulicke & Soffa Industries Inc)
Employee Benefit Plans; Labor Matters. (ai) Section 4.1(l)(i) of the Premcor Disclosure Schedule includes a complete list of all Premcor Benefit Plans.
(ii) With respect to each employee benefit planPremcor Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX Premcor has delivered or made available to Bergen Valero a true true, correct and correct complete copy of: (A) each Premcor Plan document or a summary of any unwritten Premcor Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (C) the current summary plan description related and any material modifications thereto, if any (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report, if any; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report, if any; and (vF) the most recent determination letter issued by from the IRS with respect Internal Revenue Service, if any. Except as specifically provided in the foregoing documents delivered or made available to Valero, there are no amendments to any IVAX Benefit Premcor Plan that have been adopted or approved nor has Premcor or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Premcor Plan.
(iii) Section 4.1(l)(iii) of the Premcor Disclosure Schedule identifies each Premcor Plan that is intended to be a “qualified under plan” within the meaning of Section 401(a) of the CodeCode (“Premcor Qualified Plans”). The Internal Revenue Service has issued a favorable determination letter with respect to each Premcor Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any Premcor Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service’s Employee Plans Compliance Resolution System (Revenue Procedure 2001-17) without material liability. No Premcor Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of Premcor Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Premcor Plan, for any period through the date of this Agreement have been timely made made.
(v) With respect to each Premcor Plan that is subject to Title IV or have been reflected on the most recent consolidated balance sheet filed Section 302 of ERISA or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) 412 or 4971 of the IVAX Disclosure Schedule, with respect to Code: (A) there does not exist any accumulated funding deficiency within the IVAX Benefit Plans, no event has occurred and, to the knowledge meaning of IVAX, there exists no condition or set Section 412 of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually Section 302 of ERISA, whether or in the aggregate have an IVAX Material Adverse Effect.
not waived; (c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such Premcor Plan equals or exceeds the actuarial present value of all accrued benefits under such Premcor Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign Benefit Plansuch plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as consummation of the Effective Time, 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 IVAX Foreign Benefit Plan and no transaction transactions contemplated by this Agreement shall cause will not result in the occurrence of any such assets reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or insurance obligations is expected to be less than incurred by Premcor or any of its Subsidiaries; and (F) the PBGC has not instituted proceedings to terminate any such benefit obligations; Premcor Plan and
(iii) each IVAX Foreign Benefit Plan required , to Premcor’s knowledge, no condition exists that presents a risk that such proceedings will be registered has been registered and has been maintained in good standing with instituted or which would constitute grounds under Section 4042 of ERISA for the appropriate regulatory authoritiestermination of, or the appointment of a trustee to administer, any such Premcor Plan.
(dA) No Premcor Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a “Multiple Employer Plan”); and (B) none of Premcor and its Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full. With respect to each Premcor Benefit Plan that is a Multiemployer Plan, none of Premcor and its Subsidiaries, nor any of their respective ERISA Affiliates has received any notification, nor has any reason to believe, that any such Multiemployer Plan is in reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
(vii) Except as set forth would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on Premcor, (A) each of the Premcor Plans has been operated and administered in all material respects in accordance with applicable law and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, and (B) there are no pending or threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations that have been asserted or instituted against the Premcor Plans, any fiduciaries thereof with respect to their duties to the Premcor Plans or the assets of any of the trusts under any of the Premcor Plans that could reasonably be expected to result in any material liability of Premcor or any of its Subsidiaries to the PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any Premcor Plan, any participant in a Premcor Plan, or any other party.
(viii) Premcor and its Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage as required by Section 3.09(d4980B of the Code or Part 6 of Title I of ERISA and at no expense to Premcor and its Subsidiaries. Each of Premcor and its Subsidiaries has reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(ix) Section 4.1(l)(ix) of the IVAX Premcor Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary Schedule sets forth (A) an accurate and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As complete list of each Premcor Plan under which the date execution and delivery of this Agreement, there is no labor disputestockholder approval of the transactions contemplated by this Agreement or the consummation of the transactions contemplated by this Agreement could (either alone or in conjunction with any other event), strike result in, cause the accelerated vesting, funding or work stoppage against IVAX delivery of, or increase the amount or value of, any payment or benefit (including the forgiveness of indebtedness) to any employee, officer or director of Premcor or any IVAX Subsidiary pending orof its Subsidiaries, to or could limit the knowledge right of IVAX, threatened which may interfere with the respective business activities of IVAX Premcor or any IVAX Subsidiaryof its Subsidiaries to amend, except where such disputemerge, strike terminate or work stoppage would not have an IVAX Material Adverse Effect. As receive a reversion of assets from any Premcor Plan or related trust or any material employment agreement or related trust, (B) the maximum amount of the date severance benefits and benefits under any non-qualified deferred compensation and non-qualified excess or supplemental retirement plan that could become payable to each of the employees, officers, directors and senior management of Premcor if their employment were terminated at the Effective Time and (C) the number of any Premcor Stock Options, the exercise price of such Premcor Stock Options held by each of the employees, officers and directors of Premcor that could become vested as a result of the execution and delivery of this Agreement, stockholder approval of the transactions contemplated by this Agreement or the consummation of the transactions contemplated by this Agreement (either alone or in conjunction with any other event).
(x) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on Premcor, all Premcor Benefit Plans subject to the knowledge laws of IVAXany jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements; (B) if they are intended to qualify for special tax treatment meet all requirements for such treatment; and (C) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, none of IVAXas appropriate, based upon reasonable actuarial assumptions.
(xi) There does not now exist, nor do any circumstances exist that could result in, any IVAX Subsidiaryliability (A) under Title IV of ERISA, (B) under Section 302 of ERISA, (C) under Sections 412 and 4971 of the Code, (D) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, and (E) under corresponding or similar provisions of foreign laws or regulations, that is or could be a liability of Premcor or any of its Subsidiaries. Without limiting the generality of the foregoing, neither Premcor nor any of its Subsidiaries, nor any of their respective representatives or employees ERISA Affiliates, has committed engaged in any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided transaction described in Section 3.09(f) 4069 or Section 4204 or 4212 of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any personERISA.
Appears in 2 contracts
Samples: Merger Agreement (Valero Energy Corp/Tx), Merger Agreement (Premcor Inc)
Employee Benefit Plans; Labor Matters. (a) With respect to each Section 3.11(a) of the Disclosure Letter lists, as of the date hereof, all employee benefit plan, program, arrangement and contract plans (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) ), and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, health, life or disability insurance, dependent care, severance and other similar fringe or employee benefit plans, programs or arrangements and any current employment or executive compensation or severance agreements written or otherwise maintained or contributed to by IVAX for the benefit of or relating to any employee or former employee of the Company or any IVAX Subsidiarytrade or business (whether or not incorporated) that is a member of a controlled group including the Company or that is under common control with the Company within the meaning of Section 414 of the Code (an “ERISA Affiliate”), to the extent that the Company or any ERISA Affiliate currently has or may incur liability for payments or benefits thereunder, as well as each plan with respect to which IVAX the Company or any IVAX Subsidiary an ERISA Affiliate could incur liability under Section 4069, 4069 (if such plan has been or were terminated) or Section 4212(c) or 4204 of ERISA (together, the "IVAX Benefit “Employee Plans"”), IVAX . The Company has delivered or made available to Bergen Parent a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, two (ii2) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (reports on Form 5500) 5500 filed with the Internal Revenue Service (the "“IRS"), ”) for each disclosed Employee Plan where such report is required and (ivii) the documents and instruments governing each such Employee Plan (including, without limitation, the plan document, summary plan description or other summary, most recent actuarial report and trust or financial statement relating other funding arrangement, where applicable). No Employee Plan is subject to an IVAX Benefit Plan and Title IV of ERISA or Section 412 of the Code. Except as set forth in Section 3.11(a) of the Disclosure Letter: (vA) neither the most recent determination letter issued by the IRS Company nor any ERISA Affiliate has incurred any liability (contingent or otherwise) with respect to any IVAX Benefit such Employee Plan (other than with respect to contributions required thereunder), (B) each Employee Plan has been maintained in all respects in accordance with its terms and each Employee Plan subject to ERISA and the Code has been maintained in all respects in accordance with ERISA and the Code and (C) there has been no violation of any reporting or disclosure requirement imposed by ERISA or the Code. Each Employee Plan intended to be qualified under Section 401(a) of the Code, and each trust intended to be exempt under Section 501(a) of the Code, has been determined to be so qualified or exempt by the IRS. For each Employee Plan which has received such a determination, there has been no event, condition or circumstance that has adversely affected or is likely to adversely affect such qualified status. No “party in interest” (as defined on Section 3(14) of ERISA) of any Employee Plan has participated in, engaged in or been a party to any transaction that is prohibited under Section 4975 of the Code or Section 406 of ERISA and not exempt under Section 4975 of the Code or Section 408 of ERISA (or any administrative class or individual exemption issued thereunder), respectively. With respect to any Employee Plan, (1) neither the Company nor any of its ERISA Affiliates has had asserted against it any claim for taxes under Chapter 43 of Subtitle D of the Code and Section 5000 of the Code, or for penalties under ERISA Section 502(c), (i) or (l), nor, to the Company’s knowledge, is there a basis for any such claim and (2) no officer, director or employee of the Company has committed a breach of any fiduciary responsibility or obligation imposed by Title I of ERISA. Other than routine claims for benefits, there is no claim or proceeding (including any audit or investigation) pending or, to the Company’s knowledge, threatened, involving any Employee Plan by any person, or by the IRS, the United States Department of Labor or any other Governmental Entity, against such Employee Plan or the Company or any ERISA Affiliate.
(b) Each IVAX Benefit Section 3.11(b) of the Disclosure Letter sets forth a list as of the date hereof of all (i) employment agreements with officers of the Company or any ERISA Affiliate and (ii) agreements with consultants who are individuals obligating the Company or any ERISA Affiliate to make annual cash payments in an amount of Seven Hundred Fifty Thousand ($750,000) or more and (iii) severance agreements, programs and policies of the Company with or relating to its employees, except such programs and policies required to be maintained by law. The Company has made available to Parent copies of all such agreements, plans, programs and other arrangements.
(c) Except as provided in Section 3.11(c) of the Disclosure Letter, there will be no payment, accrual of additional benefits, acceleration of payments or vesting of any benefit under any Employee Plan has been administered or any other agreement or arrangement to which the Company or any ERISA Affiliate is a party, and no employee, officer or director of the Company or any ERISA Affiliate will become entitled to severance, termination allowance or similar payments, solely by reason of entering into or in connection with the transactions contemplated by this Agreement.
(d) No Employee Plan that is a welfare benefit plan within the meaning of Section 3(1) of ERISA provides benefits to former employees of the Company or its ERISA Affiliates, other than as required by Section 4980B of the Code or similar state laws. The Company and its ERISA Affiliates have complied in all material respects in accordance with its terms the provisions of Part 6 of Title I of ERISA and all contributions required Sections 4980B, 9801, 9802, 9811 and 9812 of the Code.
(e) There are no controversies relating to be made under any Employee Plan or other labor matters pending or, to the terms of Company’s knowledge, threatened between the Company or any ERISA Affiliate and any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreementits employees. Except as set forth in Section 3.09(b3.11(a) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure ScheduleLetter, neither IVAX the Company nor any IVAX Subsidiary ERISA Affiliate is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by IVAX the Company or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX ERISA Affiliate nor does the Company nor any ERISA Affiliate know of any activities or proceedings of any labor union to organize any such employees. No strikes, work stoppage, grievance, claim of unfair labor practice or labor dispute against the Company or any IVAX Subsidiary. As of the date of this AgreementERISA Affiliate has occurred, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX Company or any IVAX SubsidiaryERISA Affiliate, except where such disputethreatened, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreementand, to the knowledge of IVAXthe Company and its ERISA Affiliates, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge basis for any of the foregoing. To the knowledge of the Company and its ERISA Affiliates, there is no organizational activity being made or complaint against IVAX threatened by or on behalf of any labor union with respect to any employees of the Company or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisionsERISA Affiliate.
(f) Except as provided set forth in Section 3.09(f3.11(a) of the IVAX Disclosure Schedule Letter, neither the Company nor any of its ERISA Affiliates sponsors or has ever sponsored, maintained, contributed to or incurred an obligation to contribute or incurred a liability (contingent or otherwise) with respect to, any Multiemployer Plan or to a Multiple Employer Plan. For these purposes, “Multiemployer Plan” means a multiemployer plan, as otherwise required by Law, no IVAX defined in Section 3(37) and 4001(a)(3) of ERISA and “Multiple Employer Plan” means any Employee Benefit Plan provides retiree medical sponsored by more than one employer, within the meaning of Sections 4063 or retiree life insurance benefits 4064 of ERISA or Section 413(c) of the Code. Neither the Company nor any of its ERISA Affiliates has, or reasonably could be expected to have, any liability under Title IV of ERISA with respect to any personother type of Employee Plan. The Company has provided to Parent a written estimate of withdrawal liability, if any, that would occur upon withdrawal from any Multiemployer Plan.
Appears in 2 contracts
Samples: Merger Agreement (K2 Inc), Merger Agreement (K2 Inc)
Employee Benefit Plans; Labor Matters. (a) Schedule 3.9 sets forth a true and complete list of all collective bargaining agreements, employment, consulting, severance, deferred compensation and non-competition agreements, executive compensation plans, stock purchase, stock award and stock option plans and agreements, restricted stock awards, bonus and incentive plans, directors fee arrangements, both tax qualified and non-qualified and statutory and non-statutory employee pension plans, employee profit sharing plans, 401(k) savings plans, multiemployer plans, employee welfare plans, group life insurance, hospitalization insurance and other similar plans or arrangements (either written or oral but only to the extent an oral plan provides material benefits) providing for benefits to any employees, consultants or directors of the Company or affiliates of the Company. With respect to each the employee benefit planplans, programstock option plans, arrangement restricted stock award programs and contract other programs and arrangements maintained or contributed to by the Company (includingthe "Company Plans"), without limitation, any "employee benefit plan"except as specifically set forth on SCHEDULE 3.9: (i) each Company Plan intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as defined 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 that could reasonably be expected to affect the qualified status of such Company Plan, (ii) each Company Plan has been operated in Section 3(3all material respects in accordance with its terms and the requirements of applicable law; (iii) the Company has not incurred 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")) maintained or contributed to by IVAX or any IVAX Subsidiary, in connection with the termination of, or with respect withdrawal from, any Company Plan or other retirement plan or arrangement, and no fact or event exists that could reasonably be expected to which IVAX or give rise to any IVAX Subsidiary could incur liability under Section 4069liability. Except as set forth on SCHEDULE 3.9, 4212(c) or 4204 the aggregate accumulated benefit obligations of each Company Plan subject to Title IV of ERISA (the "IVAX Benefit Plans"), IVAX has delivered or made available to Bergen a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(bactuarial valuation prepared for such Company Plan) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would do not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(ii) exceed the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit such Company Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, (as of the Effective Time, with respect to all current and former participants in date of such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiesvaluation).
(db) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary The Company is a party not subject to any collective bargaining or other labor union contract contracts applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiarythe Company as of the date of this Agreement. As of the date of this Agreement, there is no pending or, to the knowledge of the Company, threatened in writing labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened Company which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. the Company.
(c) As of the date of this Agreement, to there are no more than (i) 1,261,618 options issued and outstanding under the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation Company's Option Plans and (ii) 33,056 Shares reserved for issuance upon exercise of the respective businesses Warrants. No options have been issued to employees or directors of IVAX or any IVAX Subsidiarythe Company since December 5, and there is 2000. There are no charge or complaint against IVAX or any IVAX Subsidiary restricted stock awards which have been issued by the National Labor Relations Board Company that are currently outstanding.
(d) Except as disclosed on SCHEDULE 3.9(d), the consummation of the transactions contemplated by this Agreement will not give rise to an obligation on behalf of the Company to make severance or change of control payments to any comparable governmental agency pending or threatened in writingindividuals, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effectas may arise from actions of the Company taken at the direction of Parent following the Effective Time.
(e) IVAX has delivered No payments made to Bergen true and complete copies any individual by the Company as a result of (ithe consummation of the transactions contemplated by this Agreement would be non-deductible under either Section 162(m) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess the Code or Section 280G of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisionsthe Code.
(f) Except as provided The Company has not taken any action or failed to take any action which would result in Section 3.09(f) the imposition of a material excise tax on the Company pursuant to Sections 4975, 4980B and 4999 of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any personCode.
Appears in 2 contracts
Samples: Merger Agreement (Wolters Kluwer Us Corp), Merger Agreement (Wolters Kluwer Us Corp)
Employee Benefit Plans; Labor Matters. (a) With respect Neither the Company nor any Company Subsidiary is subject to any dispute or controversy under federal or state labor laws other than any such controversy that would not be reasonably likely to have a Company Material Adverse Effect. The Company has made available to Parent a true and complete copy as of the date hereof of each material employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ), maintained or contributed to by IVAX the Company or any IVAX Company Subsidiary, or with respect to which IVAX the Company or any IVAX Company Subsidiary could incur material liability under Section section 4069, 4212(c) or 4204 of ERISA (the "IVAX Company Benefit Plans"), IVAX has delivered or made available .
(b) With respect to Bergen a true and correct copy of (i) such IVAX each Company Benefit Plan and the most recent summary plan description related which is subject to each IVAX Benefit Plan for which a summary plan description is requiredTitle IV of ERISA, (iiA) each trust agreement or other funding arrangement relating to the accrued benefit obligations under such IVAX Company Benefit Plan, (iii) calculated in accordance with FAS 87 based upon the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) actuarial assumptions used in the most recent actuarial report or financial statement relating prepared by such Company Benefit Plan's actuary with respect to an IVAX such Company Benefit Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Company Benefit Plan and allocable to such accrued benefits, (vB) no "reportable event" (within the most recent determination letter issued by the IRS meaning of Section 4043 of ERISA) has occurred with respect to any IVAX Company Benefit Plan qualified for which the 30-day notice requirement has not been waived, except where such reportable event would not have a Company Material Adverse Effect, and (C) no condition exists which would subject the Company or any Company Subsidiary to any fine under Section 401(a4071 of ERISA, except where such condition would not have a Company Material Adverse Effect. No Company Benefit Plan is a "multiemployer pension plan" (as such term is defined in section 3(37) of the CodeERISA).
(bc) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with With respect to the IVAX Company Benefit Plans, no event has occurred and, to the knowledge of IVAXthe Company, there exists no condition or set of circumstances in connection with which IVAX the Company or any IVAX Company Subsidiary could be subject to any liability under the terms of such IVAX Company Benefit Plans, ERISA, the Code or any other applicable Law which would which, individually or in the aggregate aggregate, would have an IVAX a Company Material Adverse Effect.
(c. Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with applicable laws and administrative or governmental rules and regulations, including, but not limited to, ERISA and the Code, except where a violation of any such law, rule or regulation would not have a Company Material Adverse Effect. Each of the Company Benefit Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination letter as to such qualification from the IRS, and no event has occurred, either by reason of any action or failure to act, which would cause the loss of any such qualification, except where such loss of qualification would not have a Company Material Adverse Effect. Except as set forth in Section 3.09(c) 3.9 of the IVAX Company Disclosure Schedule or except as would in Company SEC Filings filed prior to the date hereof, no Company Benefit Plan provides material benefits, including, without limitation, death or medical benefits (whether or not have an IVAX Material Adverse Effectinsured), with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
current or former employees of the Company or any Company Subsidiary beyond their retirement or other termination of service, other than (i) all employer and coverage mandated by applicable law, (ii) death benefits or retirement benefits under any "employee pension plan" (as such term is defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of the Company or any Company Subsidiary or (iv) benefits the full cost of which is borne by the current or former employee (or his beneficiary). All contributions or other amounts payable by the Company or any Company Subsidiary as of the Effective Time with respect to each IVAX Foreign Company Benefit Plan required by Law in respect of current or by the terms of such IVAX Foreign Benefit Plan prior plan years have been made or, if applicable, paid or accrued in accordance with normal accounting practices;
(ii) the fair market value GAAP and Section 412 of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Code. Except as set forth in Section 3.09(d) 3.9 of the IVAX Company Disclosure ScheduleSchedule or in any Company SEC Filing made prior to the date hereof, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As as of the date hereof, no Company Benefit Plan nor any agreement between the Company or any Company Subsidiary and any employee provides for the payment of any additional compensation or benefits on account of termination of employment in contemplation of or after, or otherwise in connection with, the transactions contemplated by this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 2 contracts
Samples: Merger Agreement (Mosinee Paper Corp), Merger Agreement (Wausau Paper Mills Co)
Employee Benefit Plans; Labor Matters. (a) With respect to each Section 2.11(a) of the Disclosure Letter lists as of the date hereof all employee benefit plan, program, arrangement and contract plans (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ), and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, health, life, or disability insurance, dependent care, severance and other similar fringe or employee benefit plans, programs or arrangements and any current employment or executive compensation or severance agreements written or otherwise maintained or contributed to by IVAX for the benefit of or relating to any employee or former employee of the Company or any IVAX Subsidiarytrade or business (whether or not incorporated) that is a member of a controlled group including the Company or that is under common control with the Company within the meaning of Section 414 of the Code (an "ERISA AFFILIATE"), to the extent that the Company or any ERISA Affiliate currently has or will incur liability for payments or benefits thereunder, as well as each plan with respect to which IVAX the Company or any IVAX Subsidiary an ERISA Affiliate could incur liability under Section 4069, 4069 (if such plan has been or were terminated) or Section 4212(c) or 4204 of ERISA (together, the "IVAX Benefit PlansEMPLOYEE PLANS"), IVAX . The Company has delivered or made available to Bergen Parent a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, two (ii2) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (reports on Form 5500) 5500 filed with the Internal Revenue Service (the "IRS"), ) for each disclosed Employee Plan where such report is required and (ivii) the most recent actuarial report documents and instruments governing each such Employee Plan. No Employee Plan is subject to Title IV of ERISA or financial statement relating to an IVAX Benefit Plan and (v) Section 412 of the most recent determination letter issued Code. Except for non-compliances that, individually or in the aggregate would not result in any loss, expense, charge, assessment, levy, fine or other liability being imposed upon or incurred by the IRS Company or any ERISA Affiliate exceeding Two Hundred Thousand Dollars ($200,000) and that have not resulted in, and could not reasonably be expected to result in disqualification of any Employee Plan: (i) neither the Company nor any ERISA Affiliate has incurred any liability (contingent or otherwise) with respect to any IVAX Benefit such Employee Plan, (ii) each Employee Plan has been maintained in all respects, by its terms and in operation, in accordance with ERISA and the Code, and (iii) there has been no violation of any reporting or disclosure requirement imposed by ERISA or the Code. Each Employee Plan intended to be qualified under Section 401(a) of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms , and all contributions required each trust intended to be made exempt under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b501(a) of the IVAX Disclosure ScheduleCode, with has been determined to be so qualified or exempt by the IRS or has remaining a period of time under applicable United States Department of Treasury Regulations or IRS pronouncements in which to receive such a determination. For each Employee Plan which has received such a determination, there has been no event, condition or circumstance that has adversely affected or is likely to adversely affect such qualified status. No Employee Plan has participated in, engaged in or been a party to any transaction that is prohibited under Section 4975 of the Code or Section 406 of ERISA and not exempt under Section 4975 of the Code or Section 408 of ERISA (or any administrative class exemption issued thereunder), respectively. With respect to any Employee Plan, (i) neither the IVAX Benefit PlansCompany, no event nor any of its ERISA Affiliates has occurred andhad asserted against it any claim for taxes under Chapter 43 of Subtitle D of the Code and Section 5000 of the Code, or for penalties under ERISA Section 502(c), (i) or (l), nor, to the knowledge of IVAXthe Company, is there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer a basis for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plansuch claim, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 2 contracts
Samples: Merger Agreement (Cadence Design Systems Inc), Merger Agreement (Simplex Solutions Inc)
Employee Benefit Plans; Labor Matters. (a) With Except as set forth in Section 2.11(a) of the IVP Disclosure Schedule with respect to each employee benefit plan, program, policy, arrangement and contract (including, without limitation, any "employee benefit plan", ," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ), maintained or contributed to at any time by IVAX IVP or any IVAX Subsidiaryentity required to be aggregated with IVP pursuant to Section 414 of the Code (each, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the a "IVAX Benefit PlansIVP Employee Plan"), IVAX no event has delivered occurred and to the knowledge of IVP, no condition or made available set of circumstances exists in connection with which IVP could reasonably be expected to Bergen be subject to any liability which would have a true and correct copy of Material Adverse Effect on IVP.
(i) such IVAX Benefit No IVP Employee Plan is or has been subject to Title IV of ERISA or Section 412 of the Code; and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating IVP Employee Plan intended to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified qualify under Section 401(a) of the CodeCode and each trust intended to qualify under Section 501(a) of the Code is the subject of a favorable Internal Revenue Service determination letter, and nothing has occurred which could reasonably be expected to adversely affect such determination.
(bc) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any Section 2.11(c) of the IVAX Benefit Plans IVP Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement have been timely made Agreement, that no person holds or have been reflected on the most recent consolidated balance sheet filed owns and IVP Stock Options or incorporated by reference IVP Warrants. Further, IVP has not taken any action that would result in the IVAX Reports prior to issuance of any IVP Stock Options.
(d) There shall be no payment, accrual of additional benefits, acceleration of payments, or vesting in any benefit under any IVP Employee Plan or any agreement or arrangement disclosed under this Section 2.11 solely by reason of entering into or in connection with the date of transactions contemplated by this Agreement. Except as set forth in Section 3.09(b.
(e) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, There are no event has occurred andcontroversies pending or, to the knowledge of IVAXIVP, there exists no condition threatened, between IVP and any of their employees, which controversies have or set of circumstances in connection with which IVAX or any IVAX Subsidiary could reasonably be subject expected to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX a Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX Effect on IVP. Neither IVP nor any IVAX Subsidiary of its subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by IVAX IVP or any IVAX Subsidiary of its subsidiaries (and no neither IVP nor any of its subsidiaries has any outstanding material liability with respect to any terminated collective bargaining agreement is being negotiated by IVAX or labor union contract), nor does IVP know of any IVAX Subsidiaryactivities or proceedings of any labor union to organize any of its or employees. As of the date of this Agreement, there is IVP has no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAXany strike, threatened which may interfere slowdown, work stoppage, lockout or threat thereof, by or with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, respect to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effectits employees.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 2 contracts
Samples: Acquisition Agreement (EZJR, Inc.), Acquisition Agreement (EZJR Inc)
Employee Benefit Plans; Labor Matters. (a) With respect to each Each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in plan within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other employee benefit plans, programs, policies or agreements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise) maintained or contributed to by IVAX or any IVAX SubsidiarySeller (including for purposes of this Section 3.13, or all employers that would be treated, together with respect to which IVAX or any IVAX Subsidiary could incur liability under Seller, as a single employer within the meaning of Section 4069414(b) and (c) of the Internal Revenue Code of 1986, 4212(c) or 4204 of ERISA as amended (the "IVAX Code")) or to which Seller contributes or has current or contingent liability (collectively, the "Employee Benefit Plans")) is listed on Schedule XII annexed hereto and made a part hereof. Seller does not contribute and has not contributed during the past six years to any "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA, IVAX has delivered or made available and Seller is not subject to Bergen a true and correct copy any withdrawal liability under Title IV of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS ERISA with respect to any IVAX such plan. No Employee Benefit Plan qualified under is subject to Title IV of ERISA or Section 401(a) 412 of the Code.
(b) Each IVAX . Seller has not incurred and does not reasonably expect to incur any liability under Title IV of ERISA. No Employee Benefit Plan provides for post-employment or post-retirement health or medical or life insurance benefits for retired or former employees of Seller or its affiliates, except as required to avoid excise tax under Section 4980B of the Code. Except as set forth on Schedule XII: (i) each Employee Benefit Plan is in substantial compliance with applicable law and has been administered and operated in all material respects in accordance with its terms and all contributions required terms; (ii) each Employee Benefit Plan which is intended to be made under "qualified" within the terms meaning of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b401(a) of the IVAX Disclosure Schedule, with respect to Code has received a favorable determination letter from the IVAX Benefit Plans, no event has occurred Internal Revenue Service and, to the knowledge of IVAXSeller, there exists no event has occurred and no condition exists which would result in the revocation of any such determination; (iii) neither Seller, nor any other "disqualified person" or set "party in interest" (as defined in Section 4975(e)(2) of circumstances the Code and Section 3(14) of ERISA, respectively) has engaged in any transaction in connection with which IVAX any Employee Benefit Plan that would result in the imposition of a material penalty pursuant to Section 502(i) of ERISA or any IVAX Subsidiary could be a material tax pursuant to Section 4975 of the Code and no event has occurred and no condition exists that would otherwise subject Seller to any liability under the terms of such IVAX Benefit Plansmaterial excise tax, ERISApenalty, fine or lien imposed by ERISA or the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Employee Benefit Plan"):
; and (iiv) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law no claim, action or by the terms of such IVAX Foreign Benefit Plan have been made orlitigation, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedulemade, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending commenced or, to the knowledge of IVAXSeller, threatened which may interfere with respect to any Employee Benefit Plan (other than routine claims for benefits payable in the respective business activities ordinary course, and appeals of IVAX denied such claims). Except as provided by or any IVAX Subsidiaryunder the agreements and arrangements described on Schedules XII and XIII, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As the execution of this Agreement and the consummation of the date transactions contemplated hereby will not result in any material payment to or accelerate the vesting of this Agreementbenefits of any employee of Seller under any Employee Benefit Plan or other plan, policy or agreement of Seller. With respect to each Employee Benefit Plan, Seller has delivered or made available for review to Buyer or its counsel a true and complete copy of, to the knowledge of IVAX, none of IVAX, extent applicable: (a) the plan document (including any IVAX Subsidiary, amendments thereto) and any related trust agreement or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000other funding instrument, (iib) all severance plansthe most recent Internal Revenue Service determination letter, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, (c) the summary plan description and (iiid) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisionsthe annual report most recently filed on Internal Revenue Service Form 5500-series.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Echelon International Corp), Merger Agreement (Echelon International Corp)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX CGI or any IVAX CGI Subsidiary, or with respect to which IVAX CGI or any IVAX CGI Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX CGI Benefit Plans"), IVAX CGI has delivered or made available to Bergen STC a true true, complete and correct copy of (i) such IVAX CGI Benefit Plan and the most recent summary plan description related to each IVAX such CGI Benefit Plan for which Plan, if a summary plan description is requiredrequired therefor, (ii) each trust agreement or other funding arrangement relating to such IVAX CGI Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS")IRS with respect to such CGI Benefit Plan, (iv) the most recent actuarial report or financial statement relating to an IVAX such CGI Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX such CGI Benefit Plan Plan, if it is qualified under Section 401(a) of the Code.
(b) Each IVAX CGI Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX CGI Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX CGI Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b5.09(b) of the IVAX CGI Disclosure Schedule, with respect to the IVAX CGI Benefit Plans, no event has occurred and, to the knowledge of IVAXCGI, there exists no condition or set of circumstances in connection with which IVAX CGI or any IVAX CGI Subsidiary could be subject to any liability under the terms of such IVAX CGI Benefit Plans, ERISA, the Code or any other applicable Law which would could reasonably be expected to have, individually or in the aggregate have an IVAX aggregate, a CGI Material Adverse Effect.
(c) Except as set forth in Section 3.09(c5.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX CGI Disclosure Schedule, neither IVAX CGI nor any IVAX CGI Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX CGI or any IVAX CGI Subsidiary and no collective bargaining agreement is being negotiated by IVAX CGI or any IVAX CGI Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX CGI or any IVAX CGI Subsidiary pending or, to the knowledge of IVAXCGI, threatened which may interfere with the respective business activities of IVAX CGI or any IVAX CGI Subsidiary, except where such dispute, strike or work stoppage would could not have an IVAX reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAXCGI, none of IVAXCGI, any IVAX CGI Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX CGI or any IVAX CGI Subsidiary, and there is no charge or complaint against IVAX CGI or any IVAX CGI Subsidiary by the National Labor Relations Board or any comparable governmental agency Governmental Entity pending or threatened in writing, except where such unfair labor practice, charge or complaint would could not have an IVAX reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect.
(ed) IVAX CGI has delivered to Bergen true STC true, complete and complete correct copies of (i) all employment agreements with officers of IVAX CGI and each IVAX CGI Subsidiary providing for annual compensation in excess of $250,00025,000, (ii) all severance plans, agreements, programs and policies of IVAX CGI and each IVAX CGI Subsidiary with or relating to their respective employees, employees and (iii) all plans, programs, agreements and other arrangements of IVAX CGI and each IVAX CGI Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(fe) Except as provided in Section 3.09(f5.09(e) of the IVAX CGI Disclosure Schedule or as otherwise required by Law, no IVAX CGI Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Cell Genesys Inc), Merger Agreement (Cell Genesys Inc)
Employee Benefit Plans; Labor Matters. (a) With respect to SECTION 5.9(A) of the Company Disclosure Statement sets forth a true and complete list as of the date hereof of each material employee benefit plan, program, arrangement and contract plan (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained and contract for employment or benefits, including, but not limited to, severance or change of control agreements, maintained, or contributed to to, by IVAX the Company or any IVAX Subsidiaryof its Subsidiaries, or with respect to which IVAX the Company or any IVAX Subsidiary could incur liability under of its Subsidiaries or any entity described in Section 40694.14(b), 4212(c(c) or 4204 (m) of ERISA the Code is required to contribute (the "IVAX Benefit PlansCOMPANY BENEFIT PLANS"). With respect to each Company Benefit Plan, IVAX the Company has heretofore delivered or made available to Bergen Parent a true true, correct and correct complete copy of (i) each material writing constituting a part of such IVAX Company Benefit Plan Plan, including without limitation all plan documents, trust agreements, and insurance contracts and other funding vehicles; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description related and any material modifications thereto, if any (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiiv) the most recent annual report financial report, if any; (Form 5500v) filed with the most recent actuarial report, if any; and (vi) the most recent determination letter from the Internal Revenue Service (the "IRS"), if any. Except as provided in the foregoing documents delivered to Parent, there are no amendments to any Company Benefit Plan that have been adopted or approved nor has the Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new plan.
(ivb) With respect to each Company Benefit Plan which is subject to Title IV of ERISA, or Section 302 of ERISA or Section 412 or 4971 of the Code, (i) the present value of accrued benefits under such Company Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Company Benefit Plan's actuary with respect to such Company Benefit Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Company Benefit Plan allocable to such accrued benefits, (ii) no "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Company Benefit Plan for which the 30-day notice requirement has not been waived, (iii) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or financial statement relating Section 302 of ERISA, whether or not waived, (iv) all premiums to the Pension Benefit Guaranty Corporation ("PBGC") have been timely paid in full, (v) no liability (other than for premiums to PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company or any of its Subsidiaries with respect to a Company Benefit Plan to which contributions have been made, or an IVAX obligation to make contributions has been present, during the last six years, (vi) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan and, to the Company's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Benefit Plan and (vvii) there does not exist any liability of the most recent determination letter issued by Company as a result of a failure to comply with the IRS with respect continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, except where the failure of any of the foregoing to be true would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. No Company Benefit Plan is a "multiemployer pension plan" (as such term is defined in Section 3(37) of ERISA) (a "MULTIEMPLOYER PLAN") or a plan that has two or more contributing sponsors, at least two of whom are not under common control within the meaning of Section 4063 of ERISA (a "MULTIPLE EMPLOYER PLAN"). Neither the Company nor any of its Subsidiaries has at any time during the last six years, (A) contributed to or been obligated to contribute to any IVAX Multiemployer Plan or Multiple Employer Plan or (B) incurred any withdrawal liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, that has not been satisfied in full.
(c) Each of the Company Benefit Plan qualified under Plans has been operated and administered in accordance with applicable Laws and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, except where a violation of any such Law, rule or regulation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. Each of the Company Benefit Plans intended to be "qualified" within the meaning of Section 401(a) of the Code.
(b) Each IVAX Benefit Plan Code has been administered in all material respects in accordance with its terms and all contributions required received a favorable determination letter as to be made under such qualification from the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure ScheduleIRS or, with respect to plans qualified in Puerto Rico, from the IVAX Benefit PlansTreasury Department of the Commonwealth of Puerto Rico, and no event has occurred andoccurred, either by reason of any action or failure to the knowledge of IVAXact, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would cause the loss of any such qualification, except where such action or failure to act can be cured without having, individually or in the aggregate have an IVAX aggregate, a Material Adverse Effect.
Effect on the Company. No Company Benefit Plan provides benefits, including, without limitation, death or medical benefits (c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule whether or except as would not have an IVAX Material Adverse Effectinsured), with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
current or former employees of the Company or any Subsidiary thereof beyond their retirement or other termination of service, other than (i) all employer and employee contributions to each IVAX Foreign Benefit Plan required coverage mandated by Law or by the terms of such IVAX Foreign Benefit Plan have been made orapplicable Law, if applicable, accrued in accordance with normal accounting practices;
(ii) death benefits or retirement benefits under any "employee pension plan" (as such term is defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the fair market value books of the assets Company or any Subsidiary thereof or (iv) benefits the full cost of each funded IVAX Foreign Benefit Plan, which is borne by the liability of each insurer for current or former employee (or his beneficiary). All contributions or other amounts accrued or due from the Company or any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, Subsidiary thereof as of the Effective Time, Time 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 IVAX Foreign each Company Benefit Plan and no transaction contemplated in respect of current or prior plan years will have been paid or accrued by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; and
(iii) each IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained time in good standing accordance with the appropriate regulatory authoritiesGAAP.
(d) Except as set forth in Section 3.09(d) of Neither the IVAX Disclosure Schedule, neither IVAX Company nor any IVAX Subsidiary thereof is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX the Company or any IVAX Subsidiary thereof, and no collective bargaining agreement or other labor union contract is being negotiated by IVAX the Company or any IVAX SubsidiarySubsidiary thereof. As of the date of this Agreement, there There is no labor dispute, strike strike, slowdown or work stoppage against IVAX the Company or any IVAX Subsidiary thereof pending or, to the knowledge of IVAXthe Company, threatened which may interfere with that would, individually or in the respective business activities of IVAX or any IVAX Subsidiaryaggregate, except where such dispute, strike or work stoppage would not reasonably be expected to have an IVAX a Material Adverse EffectEffect on the Company. As of the date of this Agreement, to To the knowledge of IVAXthe Company, none of IVAXthe Company, any IVAX Subsidiary, Subsidiary thereof or any of their respective representatives or employees has committed any unfair labor practice practices in connection with the operation of the respective businesses of IVAX the Company or any IVAX SubsidiarySubsidiary thereof, and there is no charge or complaint against IVAX the Company or any IVAX Subsidiary thereof by the National Labor Relations Board or any comparable governmental state or foreign agency pending or threatened in writingor, to the knowledge of the Company, threatened, except where such unfair labor practice, charge or complaint would not not, individually or in the aggregate, reasonably be expected to have an IVAX a Material Adverse EffectEffect on the Company.
(e) IVAX The Company has delivered identified in SECTION 5.9(E) of the Company Disclosure Statement and has made available to Bergen Parent true and complete copies of all plans, programs or arrangements (i) all employment agreements with officers to provide compensation by grant of, or to allow the purchase of, Company stock or stock of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000a predecessor employer, (ii) all severance plansto provide incentive bonuses, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) to allow for, or provide for, the deferral of compensation other than through a plan described in Section 401(a) of the Code; and with respect to all such plans, programsprograms or arrangements, agreements all contributions, if any, accrued or due from the Company or any Subsidiary thereof as of the Effective Time in respect of current or prior plan years will have been paid or accrued by such time in accordance with GAAP. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other arrangements event, such as termination of IVAX and each IVAX employment) (A) result in any material payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any director or any employee of the Company or any Subsidiary with or relating to their respective employees which contain "change Affiliate thereof from the Company or any Subsidiary or Affiliate thereof under any Company Benefit Plan or otherwise, (B) materially increase any benefits otherwise payable under any Company Benefit Plan or (C) result in any acceleration of control" provisionsthe time of payment or vesting of any material benefits.
(f) Except as provided in Neither the Company nor any Subsidiary thereof is a party to any contract, plan, or arrangement under which it is obligated to make or to provide, or could become obligated to make or to provide, a payment or benefit that would be nondeductible under Section 3.09(f162(m) or 280G of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any personCode.
Appears in 2 contracts
Samples: Merger Agreement (Delta Beverage Group Inc), Merger Agreement (Whitman Corp/New/)
Employee Benefit Plans; Labor Matters. (a) With respect to each material employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ERISA maintained or contributed to by IVAX Hafslund Nycomed or any IVAX Hafslund Nycomed Subsidiary, or with respect to which IVAX Hafslund Nycomed or any IVAX Hafslund Nycomed Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit PlansHAFSLUND NYCOMED BENEFIT PLANS"), IVAX Hafslund Nycomed has delivered or made available to Bergen IVAX a true and correct copy of (i) such IVAX Hafslund Nycomed Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is requiredPlan, (ii) each trust agreement or other funding arrangement relating to such IVAX Hafslund Nycomed Benefit Plan, (iii) the most recent annual actuarial report (Form 5500) filed with the Internal Revenue Service (the "IRS"), or valuation relating to a Hafslund Nycomed Benefit Plan subject to Title IV of ERISA and (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter letter, if any, issued by the IRS with respect to any IVAX Hafslund Nycomed Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b6.09(b) of the IVAX Hafslund Nycomed Disclosure Schedule, with respect to the IVAX Hafslund Nycomed Benefit Plans, no event has occurred and, to the knowledge of IVAXHafslund Nycomed, there exists no condition or set of circumstances in connection with which IVAX Hafslund Nycomed or any IVAX Hafslund Nycomed Subsidiary could be subject to any liability under the terms of such IVAX Hafslund Nycomed Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX a Hafslund Nycomed Material Adverse Effect.
(c) Except In addition to the foregoing, and except as set forth in Section 3.09(c6.09(c) of the IVAX Hafslund Nycomed Disclosure Schedule or except as would not have an IVAX a Hafslund Nycomed Material Adverse Effect, with respect to each IVAX Hafslund Nycomed Benefit Plan that is not subject to United States Law (an a "IVAX Foreign Benefit PlanHAFSLUND NYCOMED FOREIGN BENEFIT PLAN"):
(i) all employer and employee contributions to each IVAX Hafslund Nycomed Foreign Benefit Plan required by Law or by the terms of such IVAX Hafslund Nycomed Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practicespractices and a pro rata contribution for the period from the date hereof to and including the Effective Time has been made or accrued in accordance with normal accounting principles;
(ii) the fair market value of the assets of each funded IVAX Hafslund Nycomed Foreign Benefit Plan, the liability of each insurer for any IVAX Hafslund Nycomed Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Hafslund Nycomed Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX Hafslund Nycomed 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 IVAX Hafslund Nycomed Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate applicable regulatory authorities.
(d) Except as set forth in Section 3.09(d6.09(d) of the IVAX Hafslund Nycomed Disclosure Schedule, neither IVAX Hafslund Nycomed nor any IVAX Hafslund Nycomed Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed in the Medical Businesses (including corporate employees) by IVAX Hafslund Nycomed or any IVAX Hafslund Nycomed Subsidiary and no such collective bargaining agreement is being negotiated by IVAX Hafslund Nycomed or any IVAX Hafslund Nycomed Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX Hafslund Nycomed or any IVAX Hafslund Nycomed Subsidiary pending or, to the knowledge of IVAX, or threatened which in writing that may interfere with the respective business activities of IVAX Hafslund Nycomed or any IVAX SubsidiaryHafslund Nycomed Subsidiary in the Medical Businesses, except where such dispute, strike or work stoppage would not have an IVAX a Hafslund Nycomed Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAXHafslund Nycomed, none of IVAXHafslund Nycomed, any IVAX Subsidiary, Hafslund Nycomed Subsidiary or any of their respective representatives or employees has committed any unfair labor practice practices in connection with the operation of the respective businesses Medical Businesses of IVAX Hafslund Nycomed or any IVAX Hafslund Nycomed Subsidiary, and there is no charge or complaint alleging any unfair labor practice against IVAX Hafslund Nycomed or any IVAX Hafslund Nycomed Subsidiary by the National Labor Relations Board or any comparable governmental other agency of any other jurisdiction pending or threatened in writingwriting with respect to such Medical Businesses, except where such unfair labor practice, charge or complaint would not have an IVAX a Hafslund Nycomed Material Adverse Effect.
(e) Hafslund Nycomed has made available to IVAX has delivered to Bergen true and complete copies of (i) all severance and employment agreements with executive officers of IVAX Hafslund Nycomed and each IVAX Hafslund Nycomed Subsidiary providing for annual compensation who in the fiscal year ended December 31, 1994 received a base salary in excess of $250,000, NOK 1,250,000; (ii) all severance plans, agreements, programs and policies of IVAX Hafslund Nycomed and each IVAX Subsidiary Hafslund Nycomed subsidiary with or relating to their respective its employees, ; and (iii) all plans, programs, agreements and other arrangements of IVAX Hafslund Nycomed and each IVAX Hafslund Nycomed Subsidiary with or relating to their respective its employees who in the fiscal year ended December 31, 1994 received a base salary in excess of NOK 1,250,000 which contain "change of control" control provisions.
(f) Except as provided in Section 3.09(f6.09(f) of the IVAX Hafslund Nycomed Disclosure Schedule or as otherwise required by Law, no IVAX Hafslund Nycomed Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (ai) Section 4.1(m)(i) of the Kaneb Disclosure Schedule includes a complete list of all Kaneb Benefit Plans.
(ii) With respect to each employee benefit planKaneb Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX has Kaneb Entities have delivered or made available to Bergen VLI, as applicable, a true true, correct and correct complete copy of: (A) each Kaneb Plan document or a summary of any unwritten Kaneb Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule; (C) the current summary plan description related and any material modifications thereto (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report; and (vF) the most recent determination letter issued by from the IRS with respect Internal Revenue Service. Except as specifically provided in the foregoing documents delivered or made available to VLI, or except as provided in Section 4.1(m)(ii) of the Kaneb Disclosure Schedule, there are no amendments to any IVAX Benefit Kaneb Plan that have been adopted or approved nor has KPP or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Kaneb Plan.
(iii) Section 4.1(m)(iii) of the Kaneb Disclosure Schedule identifies each Kaneb Plan that is intended to be a “qualified under plan” within the meaning of Section 401(a) of the CodeCode (“Kaneb Qualified Plans”). The Internal Revenue Service has issued a favorable determination letter with respect to each Kaneb Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any Kaneb Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service’s Employee Plans Compliance Resolution System (Revenue Procedure 2003-44) without material liability. No Kaneb Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of Kaneb Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Kaneb Plan, for any period through the date of this Agreement have been timely made or, to the extent not required to be made or have been reflected paid on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to before the date of this Agreement, have been fully reflected on the financial statements. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Each Kaneb Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA is either (A) funded through an insurance company contract and is not a “welfare benefit fund” with the meaning of Section 419 of the Code or (B) unfunded.
(v) With respect to each Kaneb Plan that is subject to United States Law Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (an "IVAX Foreign Benefit Plan"):
A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such Kaneb Plan equals or exceeds the actuarial present value of all accrued benefits under such Kaneb Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign Benefit Plansuch plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as consummation of the Effective Time, 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 IVAX Foreign Benefit Plan and no transaction transactions contemplated by this Agreement shall cause will not result in the occurrence of any such assets reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or insurance obligations is expected to be less than incurred by KPP or any of its Subsidiaries; and (F) the PBGC has not instituted proceedings to terminate any such benefit obligations; Kaneb Plan and
(iii) each IVAX Foreign Benefit Plan required , to the Knowledge of the Kaneb Entities, no condition exists that presents a risk that such proceedings will be registered has been registered and has been maintained in good standing with instituted or which would constitute grounds under Section 4042 of ERISA for the appropriate regulatory authoritiestermination of, or the appointment of a trustee to administer, any such Kaneb Plan.
(dA) No Kaneb Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a “Multiple Employer Plan”); and (B) none of KPP, any of its Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full or reasonably expects to incur any such liability. With respect to each Kaneb Benefit Plan that is a Multiemployer Plan, none of KPP, any of its respective Subsidiaries, nor any of their respective ERISA Affiliates has received any notification, nor has any reason to believe, that any such Multiemployer Plan is in reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
(vii) (A) Each of the Kaneb Plans has been operated and administered in all material respects in accordance with applicable law and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, and (B) there are no pending or, to the Knowledge of the Kaneb Entities, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against the Kaneb Plans, any fiduciaries thereof with respect to their duties to the Kaneb Plans or the assets of any of the trusts under any of the Kaneb Plans which could reasonably be expected to result in any material liability of any of the Kaneb Entities or any of their respective Subsidiaries to the PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any Kaneb Plan, any participant in a Kaneb Plan, or any other party.
(viii) Except as set forth in Section 3.09(d4.1(m)(viii) of the IVAX Kaneb Disclosure Schedule, KPP and its Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage that is required by Section 4980B of the Code or Part 6 of Title I of ERISA or that is provided at no expense to KPP and its Subsidiaries. KPP and its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(ix) Section 4.1(m)(ix) of the Kaneb Disclosure Schedule sets forth (A) an accurate and complete list of each Kaneb Plan under which the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event), result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit (including the forgiveness of indebtedness) to any employee, officer or director of KPP or any of its respective Subsidiaries, or could limit the right of KPP or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Kaneb Plan or related trust or any employment agreement or related trust, and (B) a reasonable good faith estimate of the maximum amount of the payments or value of benefits that could become payable to officers and senior management of KPP or any of its respective Subsidiaries if their employment were terminated at the KPP Effective Time. No amounts or benefits payable by KPP or any of its Subsidiaries will be “parachute payments” within the meaning of Section 280G of the Code.
(x) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Kaneb Entities ,all Kaneb Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements; (B) if they are intended to qualify for special tax treatment meet all requirements for such treatment; and (C) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(xi) There does not now exist, nor do any circumstances exist that could result in, any liability (A) under Title IV of ERISA, (B) under section 302 of ERISA, (C) under sections 412 and 4971 of the Code, (D) as a result of a failure to comply with the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, and (E) under corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Kaneb Benefit Plans, that would be a liability of KPP or any of its Subsidiaries following the Effective Time. Without limiting the generality of the foregoing, neither IVAX the Kaneb Entities nor any IVAX Subsidiary of their respective Subsidiaries, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069, 4204 or 4212 of ERISA. With respect to each Kaneb Plan, there is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with respect to a Kaneb Plan or the imposition of any lien on the assets of KPP or any of its respective Subsidiaries under ERISA or the Code.
(xii) None of KPP or any of its Subsidiaries has any potential liability, contingent or otherwise, under the Coal Industry Retiree Health Benefits Act of 1992. None of KPP, any of its Subsidiaries or any entity that was ever an ERISA Affiliate of KPP or any of its Subsidiaries was, on July 20, 1992, required to be treated as a single employer under Section 414 of the Code together with an entity that was ever a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX agreement or any IVAX Subsidiary and no collective bargaining other agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities United Mine Workers of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse EffectAmerica.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (ai) Section 4.1(m)(i) of the Kaneb Disclosure Schedule includes a complete list of all Kaneb Benefit Plans.
(ii) With respect to each employee benefit planKaneb Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX has Kaneb Entities have delivered or made available to Bergen VLI, as applicable, a true true, correct and correct complete copy of: (A) each Kaneb Plan document or a summary of any unwritten Kaneb Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule; (C) the current summary plan description related and any material modifications thereto (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report; and (vF) the most recent determination letter issued by from the IRS with respect Internal Revenue Service. Except as specifically provided in the foregoing documents delivered or made available to VLI, or except as provided in Section 4.1(m)(ii) of the Kaneb Disclosure Schedule, there are no amendments to any IVAX Benefit Kaneb Plan that have been adopted or approved nor has KPP or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Kaneb Plan.
(iii) Section 4.1(m)(iii) of the Kaneb Disclosure Schedule identifies each Kaneb Plan that is intended to be a "qualified under plan" within the meaning of Section 401(a) of the CodeCode ("KANEB QUALIFIED PLANS"). The Internal Revenue Service has issued a favorable determination letter with respect to each Kaneb Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any Kaneb Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service's Employee Plans Compliance Resolution System (Revenue Procedure 2003-44) without material liability. No Kaneb Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of Kaneb Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Kaneb Plan, for any period through the date of this Agreement have been timely made or, to the extent not required to be made or have been reflected paid on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to before the date of this Agreement, have been fully reflected on the financial statements. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Each Kaneb Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA is either (A) funded through an insurance company contract and is not a "welfare benefit fund" with the meaning of Section 419 of the Code or (B) unfunded.
(v) With respect to each Kaneb Plan that is subject to United States Law Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (an "IVAX Foreign Benefit Plan"):
A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such Kaneb Plan equals or exceeds the actuarial present value of all accrued benefits under such Kaneb Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign Benefit Plansuch plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as consummation of the Effective Time, 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 IVAX Foreign Benefit Plan and no transaction transactions contemplated by this Agreement shall cause will not result in the occurrence of any such assets reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the "PBGC") have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or insurance obligations is expected to be less than incurred by KPP or any of its Subsidiaries; and (F) the PBGC has not instituted proceedings to terminate any such benefit obligations; Kaneb Plan and
(iii) each IVAX Foreign Benefit Plan required , to the Knowledge of the Kaneb Entities, no condition exists that presents a risk that such proceedings will be registered has been registered and has been maintained in good standing with instituted or which would constitute grounds under Section 4042 of ERISA for the appropriate regulatory authoritiestermination of, or the appointment of a trustee to administer, any such Kaneb Plan.
(dA) No Kaneb Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "MULTIPLE EMPLOYER PLAN"); and (B) none of KPP, any of its Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full or reasonably expects to incur any such liability. With respect to each Kaneb Benefit Plan that is a Multiemployer Plan, none of KPP, any of its respective Subsidiaries, nor any of their respective ERISA Affiliates has received any notification, nor has any reason to believe, that any such Multiemployer Plan is in reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
(vii) (A) Each of the Kaneb Plans has been operated and administered in all material respects in accordance with applicable law and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, and (B) there are no pending or, to the Knowledge of the Kaneb Entities, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against the Kaneb Plans, any fiduciaries thereof with respect to their duties to the Kaneb Plans or the assets of any of the trusts under any of the Kaneb Plans which could reasonably be expected to result in any material liability of any of the Kaneb Entities or any of their respective Subsidiaries to the PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any Kaneb Plan, any participant in a Kaneb Plan, or any other party.
(viii) Except as set forth in Section 3.09(d4.1(m)(viii) of the IVAX Kaneb Disclosure Schedule, KPP and its Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage that is required by Section 4980B of the Code or Part 6 of Title I of ERISA or that is provided at no expense to KPP and its Subsidiaries. KPP and its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(ix) Section 4.1(m)(ix) of the Kaneb Disclosure Schedule sets forth (A) an accurate and complete list of each Kaneb Plan under which the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event), result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit (including the forgiveness of indebtedness) to any employee, officer or director of KPP or any of its respective Subsidiaries, or could limit the right of KPP or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Kaneb Plan or related trust or any employment agreement or related trust, and (B) a reasonable good faith estimate of the maximum amount of the payments or value of benefits that could become payable to officers and senior management of KPP or any of its respective Subsidiaries if their employment were terminated at the KPP Effective Time. No amounts or benefits payable by KPP or any of its Subsidiaries will be "parachute payments" within the meaning of Section 280G of the Code.
(x) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Kaneb Entities ,all Kaneb Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements; (B) if they are intended to qualify for special tax treatment meet all requirements for such treatment; and (C) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(xi) There does not now exist, nor do any circumstances exist that could result in, any liability (A) under Title IV of ERISA, (B) under section 302 of ERISA, (C) under sections 412 and 4971 of the Code, (D) as a result of a failure to comply with the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, and (E) under corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Kaneb Benefit Plans, that would be a liability of KPP or any of its Subsidiaries following the Effective Time. Without limiting the generality of the foregoing, neither IVAX the Kaneb Entities nor any IVAX Subsidiary of their respective Subsidiaries, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069, 4204 or 4212 of ERISA. With respect to each Kaneb Plan, there is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with respect to a Kaneb Plan or the imposition of any lien on the assets of KPP or any of its respective Subsidiaries under ERISA or the Code.
(xii) None of KPP or any of its Subsidiaries has any potential liability, contingent or otherwise, under the Coal Industry Retiree Health Benefits Act of 1992. None of KPP, any of its Subsidiaries or any entity that was ever an ERISA Affiliate of KPP or any of its Subsidiaries was, on July 20, 1992, required to be treated as a single employer under Section 414 of the Code together with an entity that was ever a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX agreement or any IVAX Subsidiary and no collective bargaining other agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities United Mine Workers of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse EffectAmerica.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Samples: Merger Agreement (Valero L P)
Employee Benefit Plans; Labor Matters. (ai) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", ," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and any bonus, deferred compensation, stock bonus, stock purchase, restricted stock, stock option, employment, termination, change in control and severance plan, program, arrangement and contract)) , to which MCI or any of its Subsidiaries is a party, which is maintained or contributed to by IVAX MCI or any IVAX Subsidiaryof its Subsidiaries, or with respect to which IVAX MCI or any IVAX Subsidiary of its Subsidiaries could incur material liability under Section 4069, 4201 or 4212(c) or 4204 of ERISA (the "IVAX MCI Benefit Plans"), IVAX MCI has delivered or made available to Bergen BT a true and correct complete copy of (iA) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX MCI Benefit Plan, (iiiB) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivC) each trust or other funding arrangement relating to such MCI Benefit Plan, (D) the most recent summary plan description related to each MCI Benefit Plan for which a summary plan description is required, (E) the most recent actuarial report or financial statement (if applicable) relating to an IVAX MCI Benefit Plan and (vF) the most recent determination letter letter, if any, issued by the IRS with respect to any IVAX MCI Benefit Plan qualified under Section 401(a) of the Code.
(bii) Each IVAX of the MCI Benefit Plan has been administered in all material respects in accordance with its terms Plans that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA and all contributions required that is intended to be made qualified under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b401(a) of the IVAX Disclosure ScheduleCode has received a favorable determination letter from the IRS, with and MCI is not aware of any circumstances likely to result in the revocation of any such favorable determination letter that would have a Material Adverse Effect on MCI.
(iii) With respect to the IVAX MCI Benefit Plans, no event has occurred and, to the knowledge of IVAXMCI, there exists no condition or set of circumstances circumstances, in connection with which IVAX MCI or any IVAX Subsidiary of its Subsidiaries could be subject to any liability under the terms of such IVAX MCI Benefit Plans, ERISA, the Code or any other applicable Law which would law which, individually or in the aggregate aggregate, would have an IVAX a Material Adverse EffectEffect on MCI.
(civ) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect MCI has made available to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) BT all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract contracts to which MCI or any of its Subsidiaries is a party applicable to persons employed by IVAX MCI or any IVAX Subsidiary of its Subsidiaries and no collective bargaining agreement is being negotiated by IVAX MCI or any IVAX Subsidiaryof its Subsidiaries. As of the date of this Agreement, there There is no pending or threatened in writing labor dispute, strike or work stoppage against IVAX MCI or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened its Subsidiaries which may interfere with the respective business activities of IVAX MCI or any IVAX Subsidiaryof its Subsidiaries, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.a Material
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to Section 4.9(a) of the Company Disclosure Statement sets forth a true and complete list as of the date of this Agreement of each material employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", plan as defined in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) , maintained or contributed to by IVAX the Company or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA its Subsidiaries (the "IVAX Company Benefit Plans"). With respect to each Company Benefit Plan, IVAX the Company has heretofore delivered or made will deliver or make available to Bergen Tribune within 30 days of the date of this Agreement a true true, correct and correct complete copy of of: (i) such IVAX each Company Benefit Plan Plan, including all plan documents, trust agreements, and insurance contracts and other funding vehicles; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description related and any material modifications thereto, if any (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiiv) the most recent annual report financial report, if any; (Form 5500v) filed with the most recent actuarial report, if any; and (vi) the most recent determination letter from the Internal Revenue Service (the "IRS"), if any. Except as provided in the foregoing documents delivered to Tribune and except as provided in Section 4.9(a) of the Company Disclosure Statement, there are no amendments to any Company Benefit Plan that have been adopted or approved nor has the Company or any Company Subsidiary undertaken to make any such amendments or to adopt or approve any new Plan which would reasonably be expected to have a material impact on the liabilities of the Company Benefit Plan.
(ivb) With respect to each Company Benefit Plan which is subject to Title IV of ERISA, or Section 302 of ERISA or Section 412 or 4971 of the Code, (i) the present value of accrued benefits under such Company Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report or financial statement relating to an IVAX prepared by such Company Benefit Plan and (v) the most recent determination letter issued by the IRS Plan's actuary with respect to any IVAX such Company Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans Plan, did not, as of its latest valuation date, exceed the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market then current value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign such Company Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any allocable to such accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, benefits except with respect to all current and former participants in such one employee pension benefit plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such IVAX Foreign Benefit Plan and no transaction contemplated maintained by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; and
(iii) each IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) a Subsidiary of the IVAX Disclosure ScheduleCompany, neither IVAX nor any IVAX Subsidiary in which case such excess is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of greater than $250,00010 million, (ii) all severance plansno "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Company Benefit Plan for which the 30-day notice requirement has not been waived, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements there does not exist any accumulated funding deficiency within the meaning of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) 412 of the IVAX Disclosure Schedule Code or as otherwise required Section 302 of ERISA, whether or not waived, (iv) all premiums to the Pension Benefit Guaranty Corporation ("PBGC") have been timely paid in full, (v) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is reasonably expected to be incurred by Lawthe Company or any of its Subsidiaries and (vi) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan and, to the Company's knowledge, no IVAX condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Benefit Plan provides retiree medical Plan, except where the failure of any of the foregoing to be true would not, individually or retiree life insurance benefits in the aggregate, reasonably be expected to any personhave a Material Adverse Effect on the Company or prevent or materially delay the consummation of the Offer or the Merger.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (ai) Section 4.1(m)(i) of the Kaneb Disclosure Schedule includes a complete list of all Kaneb Benefit Plans.
(ii) With respect to each employee benefit planKaneb Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX KSL has delivered or made available to Bergen VLI, as applicable, a true true, correct and correct complete copy of: (A) each Kaneb Plan document or a summary of any unwritten Kaneb Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule; (C) the current summary plan description related and any material modifications thereto (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report; and (vF) the most recent determination letter issued by from the IRS with respect Internal Revenue Service. Except as specifically provided in the foregoing documents delivered or made available to VLI, or except as provided in Section 4.1(m)(ii) of the Kaneb Disclosure Schedule, there are no amendments to any IVAX Benefit Kaneb Plan that have been adopted or approved nor has KSL or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Kaneb Plan.
(iii) Section 4.1(m)(iii) of the Kaneb Disclosure Schedule identifies each Kaneb Plan that is intended to be a “qualified under plan” within the meaning of Section 401(a) of the CodeCode (“Kaneb Qualified Plans”). The Internal Revenue Service has issued a favorable determination letter with respect to each Kaneb Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any Kaneb Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service’s Employee Plans Compliance Resolution System (Revenue Procedure 2003-44) without material liability. No Kaneb Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of Kaneb Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Kaneb Plan, for any period through the date of this Agreement have been timely made or, to the extent not required to be made or have been reflected paid on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to before the date of this Agreement, have been fully reflected on the financial statements. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Each Kaneb Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA is either (A) funded through an insurance company contract and is not a “welfare benefit fund” with the meaning of Section 419 of the Code or (B) unfunded.
(v) With respect to each Kaneb Plan that is subject to United States Law Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (an "IVAX Foreign Benefit Plan"):
A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such Kaneb Plan equals or exceeds the actuarial present value of all accrued benefits under such Kaneb Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign Benefit Plansuch plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as consummation of the Effective Time, 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 IVAX Foreign Benefit Plan and no transaction transactions contemplated by this Agreement shall cause will not result in the occurrence of any such assets reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or insurance obligations is expected to be less than incurred by KSL or any of its Subsidiaries; and (F) the PBGC has not instituted proceedings to terminate any such benefit obligations; Kaneb Plan and
(iii) each IVAX Foreign Benefit Plan required , to the Knowledge of KSL, no condition exists that presents a risk that such proceedings will be registered has been registered and has been maintained in good standing with instituted or which would constitute grounds under Section 4042 of ERISA for the appropriate regulatory authoritiestermination of, or the appointment of a trustee to administer, any such Kaneb Plan.
(dvi) (A) No Kaneb Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; and (B) neither KSL, any of its Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full or reasonably expects to incur any such liability. With respect to each Kaneb Benefit Plan that is a Multiemployer Plan, neither KSL, any of its Subsidiaries, nor any of its ERISA Affiliates has received any notification, nor has any reason to believe, that any such Multiemployer Plan is in reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
(vii) (A) Each of the Kaneb Plans has been operated and administered in all material respects in accordance with applicable law and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, and (B) there are no pending or, to the Knowledge of KSL, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against the Kaneb Plans, any fiduciaries thereof with respect to their duties to the Kaneb Plans or the assets of any of the trusts under any of the Kaneb Plans which could reasonably be expected to result in any material liability of KSL or any of its Subsidiaries to the PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any Kaneb Plan, any participant in a Kaneb Plan, or any other party.
(viii) Except as set forth in Section 3.09(d4.1(m)(viii) of the IVAX Kaneb Disclosure Schedule, KSL and its Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage that is required by Section 4980B of the Code or Part 6 of Title I of ERISA or that is provided at no expense to KSL and its Subsidiaries. KSL and its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(ix) Section 4.1(m)(ix) of the Kaneb Disclosure Schedule sets forth (A) an accurate and complete list of each Kaneb Plan under which the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event), result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit (including the forgiveness of indebtedness) to any employee, officer or director of KSL or any of its Subsidiaries, or could limit the right of KSL or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Kaneb Plan or related trust or any material employment agreement or related trust, and (B) a reasonable good faith estimate of the maximum amount of the payments or value of benefits that could become payable to officers and senior management of KSL or any of its Subsidiaries if their employment were terminated at the KSL Effective Time. No amounts or benefits payable by KSL or any of its Subsidiaries will be “parachute payments” within the meaning of Section 280G of the Code.
(x) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the KSL Entities, all Kaneb Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements; (B) if they are intended to qualify for special tax treatment meet all requirements for such treatment; and (C) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(xi) There does not now exist, nor do any circumstances exist that could result in, any liability (A) under Title IV of ERISA, (B) under section 302 of ERISA, (C) under sections 412 and 4971 of the Code, (D) as a result of a failure to comply with the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, and (E) under corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Kaneb Benefit Plans, that would be a liability of KSL or any of its Subsidiaries following the KSL Effective Time. Without limiting the generality of the foregoing, neither IVAX KSL nor any IVAX of its Subsidiaries, nor any of its ERISA Affiliates, has engaged in any transaction described in Section 4069, 4204 or 4212 of ERISA. With respect to each Kaneb Plan, there is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with respect to a Kaneb Plan or the imposition of any lien on the assets of KSL or any of its Subsidiaries under ERISA or the Code.
(xii) Neither KSL nor any of its Subsidiaries has any potential liability, contingent or otherwise, under the Coal Industry Retiree Health Benefits Act of 1992. None of KSL, any of its Subsidiaries or any entity that was ever an ERISA Affiliate of KSL or a Subsidiary is of KSL was, on July 20, 1992, required to be treated as a single employer under Section 414 of the Code together with an entity that was ever a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX agreement or any IVAX Subsidiary and no collective bargaining other agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities United Mine Workers of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse EffectAmerica.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (ai) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", ," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and any bonus, deferred compensation, stock bonus, stock purchase, restricted stock, stock option, employment, termination, change in control and severance plan, program, arrangement and contract)) , to which MCI or any of its Subsidiaries is a party, which is maintained or contributed to by IVAX MCI or any IVAX Subsidiaryof its Subsidiaries, or with respect to which IVAX MCI or any IVAX Subsidiary of its Subsidiaries could incur material liability under Section 4069, 4201 or 4212(c) or 4204 of ERISA (the "IVAX MCI Benefit Plans"), IVAX MCI has delivered or made available to Bergen BT a true and correct complete copy of (iA) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX MCI Benefit Plan, (iiiB) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivC) each trust or other funding arrangement relating to such MCI Benefit Plan, (D) the most recent summary plan description related to each MCI Benefit Plan for which a summary plan description is required, (E) the most recent actuarial report or financial statement (if applicable) relating to an IVAX MCI Benefit Plan and (vF) the most recent determination letter letter, if any, issued by the IRS with respect to any IVAX MCI Benefit Plan qualified under Section 401(a) of the Code.
(bii) Each IVAX of the MCI Benefit Plan has been administered in all material respects in accordance with its terms Plans that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA and all contributions required that is intended to be made qualified under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b401(a) of the IVAX Disclosure ScheduleCode has received a favorable determination letter from the IRS, with and MCI is not aware of any circumstances likely to result in the revocation of any such favorable determination letter that would have a Material Adverse Effect on MCI.
(iii) With respect to the IVAX MCI Benefit Plans, no event has occurred and, to the knowledge of IVAXMCI, there exists no condition or set of circumstances circumstances, in connection with which IVAX MCI or any IVAX Subsidiary of its Subsidiaries could be subject to any liability under the terms of such IVAX MCI Benefit Plans, ERISA, the Code or any other applicable Law which would law which, individually or in the aggregate aggregate, would have an IVAX a Material Adverse EffectEffect on MCI.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. All employee benefit plans, programs and policies (whether formal or informal, and whether maintained for the benefit of a single individual or more than one individual) maintained or contributed to by Holdings for the benefit of any current or former employee of Old DeWixx xx CheMatch or in which such employees are entitled to participate are listed in SCHEDULE A.1.20 (the "Benefit Plans"), and copies of all such written plans and policies, written descriptions of all such oral plans and policies, and all other documentation relating to such plans and policies previously have been delivered or made available in writing to PetroChemNet. All rights and interests of Old DeWixx, Xxldings and CheMatch in and to the Benefit Plans will be included in the DeWixx Xxxiness Assets, and all liabilities of Old DeWixx Xxxdings and CheMatch under the Benefit Plans, including all liabilities, if any, which may arise from the assignment thereof without the prior consent of the insurers thereunder, will be assumed by New DeWixx xx connection with the Stock Repurchase Transactions. Except as disclosed on SCHEDULE A.1.20: (a) With respect to each employee benefit planBenefit Plan and the administration thereof complies, programand has at all times complied, arrangement and contract (includingin all material respects with the requirements of all applicable law, including without limitation, any "employee benefit plan", as defined in Section 3(3) of limitation the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and the Internal Revenue Code of 1986, as amended (the "Code"), and each Benefit Plan intended to qualify under section 401(a) of the Code so qualifies, and each trust which forms a part of any such plan is tax-exempt under section 501(a) of the Code; (b) no Benefit Plan subject to Part 3 of Title I of ERISA has incurred any "accumulated funding deficiency" within the meaning of section 302 of ERISA or section 412 of the Code; (c) no liability has been incurred or is expected to be incurred under Title IV of ERISA to any party with respect to any Benefit Plan, or any other plan presently or heretofore maintained or contributed to by IVAX Holdings or CheMatch, any predecessor to Holdings or CheMatch, or any IVAX Subsidiaryentity that is or at any time was a member of a controlled group, as defined in Section 412(n)(6)(B) of the Code, which includes or included Holdings or CheMatch ("Controlled Group Member"); (d) neither Holdings, CheMatch nor any Controlled Group Member has incurred any liability for any tax imposed under section 4971 through 4980B of the Code or civil liability under section 502(i) or (l) of ERISA; (e) the "amount of unfunded benefit liabilities" within the meaning of section 4001(a)(18) of ERISA does not exceed zero with respect to any Benefit Plan subject to Title IV of ERISA; (f) no Benefit Plan is a multiemployer plan within the meaning of section 3(37) of ERISA; (g) no Benefit Plan provides health or death benefit coverage beyond the termination of an employee's employment, except as required by Part 6 of Title I of ERISA or section 4980B of the Code, (h) no material "reportable event" (within the meaning of section 4043 of ERISA) has occurred with respect to any Benefit Plan or any plan maintained by a Controlled Group Member since the effective date of said section 4043; (i) no suit, actions or other litigation (excluding claims for benefits incurred in the ordinary course of plan activities) have been brought against or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX has delivered or made available to Bergen a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, ; (iiij) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions to Benefit Plans that were required to be made under the terms of any of the IVAX such Benefit Plans have been made as of the date of this Agreement Holdings Balance Sheet Date, and all benefits accrued under any unfunded Benefit Plan will have been timely made paid, accrued or otherwise adequately reserved in accordance with generally accepted accounting principles as of such date and Holdings and CheMatch will have been reflected on performed by the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior Closing Date all material obligations required to the be performed as of such date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX under Benefit Plans, and (k) no event employee of Holdings or CheMatch is represented by a labor union or organization, no labor union or organization has occurred and, to the knowledge been certified or recognized as a representative of IVAXany such employee, there exists are no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAXthe Stockholders, threatened which may interfere representation campaigns concerning union representation involving any employee or efforts of any labor union or organization (or representatives thereof) to organize any employees. Neither Holdings nor CheMatch is bound by or subject to (and none of its respective assets or properties is bound by or subject to) any arrangement with the respective business activities any labor union. No employees of IVAX Holdings or CheMatch are represented by any IVAX Subsidiary, except where such dispute, strike labor union or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreementcovered by any collective bargaining agreement and, to the knowledge best of IVAXthe Stockholders' knowledge, none no campaign to establish such representation is in progress. There is no pending or, to the best of IVAXthe Stockholders' knowledge, threatened labor dispute involving Holdings or CheMatch and any IVAX Subsidiarygroup of its or their employees nor has Holdings or CheMatch experienced any labor interruptions over the past three years, or and each of Holdings and CheMatch considers its relationship with its employees to be good. If reasonably requested by PetroChemNet, Holdings and/or CheMatch shall terminate any of their respective representatives or employees has committed any unfair labor practice in connection Benefit Plan substantially contemporaneously with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse EffectClosing.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Chematch Com Inc)
Employee Benefit Plans; Labor Matters. (ai) Section 4.1(m)(i) of the Kaneb Disclosure Schedule includes a complete list of all Kaneb Benefit Plans.
(ii) With respect to each employee benefit planKaneb Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX KSL has delivered or made available to Bergen VLI, as applicable, a true true, correct and correct complete copy of: (A) each Kaneb Plan document or a summary of any unwritten Kaneb Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule; (C) the current summary plan description related and any material modifications thereto (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report; and (vF) the most recent determination letter issued by from the IRS with respect Internal Revenue Service. Except as specifically provided in the foregoing documents delivered or made available to VLI, or except as provided in Section 4.1(m)(ii) of the Kaneb Disclosure Schedule, there are no amendments to any IVAX Benefit Kaneb Plan that have been adopted or approved nor has KSL or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Kaneb Plan.
(iii) Section 4.1(m)(iii) of the Kaneb Disclosure Schedule identifies each Kaneb Plan that is intended to be a "qualified under plan" within the meaning of Section 401(a) of the CodeCode ("KANEB QUALIFIED PLANS"). The Internal Revenue Service has issued a favorable determination letter with respect to each Kaneb Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any Kaneb Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service's Employee Plans Compliance Resolution System (Revenue Procedure 2003-44) without material liability. No Kaneb Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of Kaneb Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Kaneb Plan, for any period through the date of this Agreement have been timely made or, to the extent not required to be made or have been reflected paid on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to before the date of this Agreement, have been fully reflected on the financial statements. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Each Kaneb Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA is either (A) funded through an insurance company contract and is not a "welfare benefit fund" with the meaning of Section 419 of the Code or (B) unfunded.
(v) With respect to each Kaneb Plan that is subject to United States Law Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (an "IVAX Foreign Benefit Plan"):
A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such Kaneb Plan equals or exceeds the actuarial present value of all accrued benefits under such Kaneb Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign Benefit Plansuch plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as consummation of the Effective Time, 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 IVAX Foreign Benefit Plan and no transaction transactions contemplated by this Agreement shall cause will not result in the occurrence of any such assets reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the "PBGC") have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or insurance obligations is expected to be less than incurred by KSL or any of its Subsidiaries; and (F) the PBGC has not instituted proceedings to terminate any such benefit obligations; Kaneb Plan and
(iii) each IVAX Foreign Benefit Plan required , to the Knowledge of KSL, no condition exists that presents a risk that such proceedings will be registered has been registered and has been maintained in good standing with instituted or which would constitute grounds under Section 4042 of ERISA for the appropriate regulatory authoritiestermination of, or the appointment of a trustee to administer, any such Kaneb Plan.
(dA) No Kaneb Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; and (B) neither KSL, any of its Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full or reasonably expects to incur any such liability. With respect to each Kaneb Benefit Plan that is a Multiemployer Plan, neither KSL, any of its Subsidiaries, nor any of its ERISA Affiliates has received any notification, nor has any reason to believe, that any such Multiemployer Plan is in reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
(vii) (A) Each of the Kaneb Plans has been operated and administered in all material respects in accordance with applicable law and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, and (B) there are no pending or, to the Knowledge of KSL, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against the Kaneb Plans, any fiduciaries thereof with respect to their duties to the Kaneb Plans or the assets of any of the trusts under any of the Kaneb Plans which could reasonably be expected to result in any material liability of KSL or any of its Subsidiaries to the PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any Kaneb Plan, any participant in a Kaneb Plan, or any other party.
(viii) Except as set forth in Section 3.09(d4.1(m)(viii) of the IVAX Kaneb Disclosure Schedule, KSL and its Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage that is required by Section 4980B of the Code or Part 6 of Title I of ERISA or that is provided at no expense to KSL and its Subsidiaries. KSL and its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(ix) Section 4.1(m)(ix) of the Kaneb Disclosure Schedule sets forth (A) an accurate and complete list of each Kaneb Plan under which the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event), result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit (including the forgiveness of indebtedness) to any employee, officer or director of KSL or any of its Subsidiaries, or could limit the right of KSL or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Kaneb Plan or related trust or any material employment agreement or related trust, and (B) a reasonable good faith estimate of the maximum amount of the payments or value of benefits that could become payable to officers and senior management of KSL or any of its Subsidiaries if their employment were terminated at the KSL Effective Time. No amounts or benefits payable by KSL or any of its Subsidiaries will be "parachute payments" within the meaning of Section 280G of the Code.
(x) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the KSL Entities, all Kaneb Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements; (B) if they are intended to qualify for special tax treatment meet all requirements for such treatment; and (C) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(xi) There does not now exist, nor do any circumstances exist that could result in, any liability (A) under Title IV of ERISA, (B) under section 302 of ERISA, (C) under sections 412 and 4971 of the Code, (D) as a result of a failure to comply with the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, and (E) under corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Kaneb Benefit Plans, that would be a liability of KSL or any of its Subsidiaries following the KSL Effective Time. Without limiting the generality of the foregoing, neither IVAX KSL nor any IVAX of its Subsidiaries, nor any of its ERISA Affiliates, has engaged in any transaction described in Section 4069, 4204 or 4212 of ERISA. With respect to each Kaneb Plan, there is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with respect to a Kaneb Plan or the imposition of any lien on the assets of KSL or any of its Subsidiaries under ERISA or the Code.
(xii) Neither KSL nor any of its Subsidiaries has any potential liability, contingent or otherwise, under the Coal Industry Retiree Health Benefits Act of 1992. None of KSL, any of its Subsidiaries or any entity that was ever an ERISA Affiliate of KSL or a Subsidiary is of KSL was, on July 20, 1992, required to be treated as a single employer under Section 414 of the Code together with an entity that was ever a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX agreement or any IVAX Subsidiary and no collective bargaining other agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities United Mine Workers of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse EffectAmerica.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Samples: Merger Agreement (Valero L P)
Employee Benefit Plans; Labor Matters. (ai) Section 4.1(l)(i) of the UDS Disclosure Schedule includes a complete list of all UDS Benefit Plans.
(ii) With respect to each employee benefit planUDS Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX UDS has delivered or made available to Bergen Valero a true true, correct and correct complete copy of: (A) each UDS Plan document or a summary of any unwritten UDS Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (C) the current summary plan description related and any material modifications thereto, if any (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report, if any; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report, if any; and (vvi) the most recent determination letter issued by from the IRS with respect Internal Revenue Service, if any. Except as specifically provided in the foregoing documents delivered or made available to Valero, there are no amendments to any IVAX Benefit UDS Plan that have been adopted or approved nor has UDS or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new UDS Plan.
(iii) Section 4.1(l)(iii) of the UDS Disclosure Schedule identifies each UDS Plan that is intended to be a "qualified under plan" within the meaning of Section 401(a) of the CodeCode ("UDS Qualified Plans"). The Internal Revenue Service has issued a favorable determination letter with respect to each UDS Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any UDS Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service's Employee Plans Compliance Resolution System (Revenue Procedure 2001-17) without material liability. No UDS Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of UDS Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any UDS Plan, for any period through the date of this Agreement hereof have been timely made made.
(v) With respect to each UDS Plan that is subject to Title IV or have been reflected on the most recent consolidated balance sheet filed Section 302 of ERISA or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) 412 or 4971 of the IVAX Disclosure Schedule, with respect to Code: (A) there does not exist any accumulated funding deficiency within the IVAX Benefit Plans, no event has occurred and, to the knowledge meaning of IVAX, there exists no condition or set Section 412 of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually Section 302 of ERISA, whether or in the aggregate have an IVAX Material Adverse Effect.
not waived; (c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such UDS Plan equals or exceeds the actuarial present value of all accrued benefits under such UDS Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign such plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the "PBGC") have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by UDS or any of its Subsidiaries; and (F) the PBGC has not instituted proceedings to terminate any such UDS Plan and, to UDS's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such UDS Plan.
(A) No UDS Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "Multiple Employer Plan"); and (B) none of UDS and its Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full. With respect to each UDS Benefit Plan that is a Multiemployer Plan, none of UDS and its Subsidiaries, nor any of their respective ERISA Affiliates has received any notification, nor has any reason to believe, that any such Multiemployer Plan is in reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
(vii) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on UDS, (A) each of the UDS Plans has been operated and administered in all material respects in accordance with applicable law and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, and (B) there are no pending or threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against the UDS Plans, any fiduciaries thereof with respect to their duties to the UDS Plans or the assets of any of the trusts under any of the UDS Plans which could reasonably be expected to result in any material liability of UDS or any of its Subsidiaries to the PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any UDS Plan, any participant in a UDS Plan, or any other party.
(viii) UDS and its Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of ERISA and at no expense to UDS and its Subsidiaries. To the knowledge of UDS, UDS and each insurer of its Subsidiaries has reserved the right to amend, terminate or modify at any time all plans or arrangements providing for any IVAX Foreign Benefit retiree health or life insurance coverage.
(ix) Section 4.1(l)(ix) of the UDS Disclosure Schedule sets forth (A) an accurate and complete list of each UDS Plan funded through insurance under which the execution and delivery of this Agreement or the book reserve established for any IVAX Foreign Benefit Plan, together consummation of the transactions contemplated hereby could (either alone or in conjunction with any accrued contributionsother event), is sufficient result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit (including the forgiveness of indebtedness) to procure any employee, officer or provide for director of UDS or any of its Subsidiaries, or could limit the accrued benefit obligationsright of UDS or any of its Subsidiaries to amend, as merge, terminate or receive a reversion of assets from any UDS Plan or related trust or any material employment agreement or related trust, (B) a reasonable good faith estimate of the maximum amount of the severance benefits that could become payable to officers and senior management of UDS if their employment were terminated at the Effective Time, 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 IVAX 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
(iiiC) each IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in a reasonable good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) faith estimate of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As maximum amount of the date "excess parachute payments" within the meaning of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As Section 280G of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice Code that could become payable by UDS and its Subsidiaries in connection with the operation execution and delivery of this Agreement and the consummation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effecttransactions contemplated hereby.
(ex) IVAX has delivered Except as would not reasonably be expected, individually or in the aggregate, to Bergen true have a Material Adverse Effect on UDS, all UDS Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements; (B) if they are intended to qualify for special tax treatment meet all requirements for such treatment; and complete copies (C) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(xi) With respect to any UDS Benefit Plan that is an "employee stock ownership plan" within the meaning of Section 4975(e)(7) of the Code (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000an "ESOP"), (iiA) all severance planseach loan under which the ESOP was a borrower (each, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employeesa "Loan") has been fully repaid, and (iiiB) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits securities of UDS that were acquired with such Loan have been released from the pledge made in connection with the Loan and fully allocated to any personthe accounts of participants in the ESOP in accordance with the requirements of Treasury Regulations Sections 54.4975-7 and 54.4975-11.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (ai) Section 4.1(l)(i) of the UDS Disclosure Schedule includes a complete list of all UDS Benefit Plans.
(ii) With respect to each employee benefit planUDS Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX UDS has delivered or made available to Bergen Valero a true true, correct and correct complete copy of: (A) each UDS Plan document or a summary of any unwritten UDS Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (C) the current summary plan description related and any material modifications thereto, if any (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report, if any; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report, if any; and (vvi) the most recent determination letter issued by from the IRS with respect Internal Revenue Service, if any. Except as specifically provided in the fore- going documents delivered or made available to Valero, there are no amendments to any IVAX Benefit UDS Plan that have been adopted or approved nor has UDS or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new UDS Plan.
(iii) Section 4.1(l)(iii) of the UDS Disclosure Schedule identifies each UDS Plan that is intended to be a "qualified under plan" within the meaning of Section 401(a) of the CodeCode ("UDS Qualified Plans"). The Internal Revenue Service has issued a favorable determination letter with respect to each UDS Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any UDS Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service's Employee Plans Compliance Resolution System (Revenue Procedure 2001-17) without material liability. No UDS Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of UDS Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any UDS Plan, for any period through the date of this Agreement hereof have been timely made made.
(v) With respect to each UDS Plan that is subject to Title IV or have been reflected on the most recent consolidated balance sheet filed Section 302 of ERISA or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) 412 or 4971 of the IVAX Disclosure Schedule, with respect to Code: (A) there does not exist any accumulated funding deficiency within the IVAX Benefit Plans, no event has occurred and, to the knowledge meaning of IVAX, there exists no condition or set Section 412 of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually Section 302 of ERISA, whether or in the aggregate have an IVAX Material Adverse Effect.
not waived; (c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such UDS Plan equals or exceeds the actuarial present value of all accrued benefits under such UDS Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign such plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (D) all premiums to the Pension Benefit Guaranty Corporation (the "PBGC") have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by UDS or any of its Subsidiaries; and (F) the PBGC has not instituted proceedings to terminate any such UDS Plan and, to UDS's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such UDS Plan.
(A) No UDS Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "Multiple Employer Plan"); and (B) none of UDS and its Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full. With respect to each UDS Benefit Plan that is a Multiemployer Plan, none of UDS and its Subsidiaries, nor any of their respective ERISA Affiliates has received any notification, nor has any reason to believe, that any such Multiemployer Plan is in reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
(vii) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on UDS, (A) each of the UDS Plans has been operated and administered in all material respects in accordance with applicable law and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, and (B) there are no pending or threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against the UDS Plans, any fiduciaries thereof with respect to their duties to the UDS Plans or the assets of any of the trusts under any of the UDS Plans which could reasonably be expected to result in any material liability of UDS or any of its Subsidiaries to the PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any UDS Plan, any participant in a UDS Plan, or any other party.
(viii) UDS and its Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of ERISA and at no expense to UDS and its Subsidiaries. To the knowledge of UDS, UDS and each insurer of its Subsidiaries has reserved the right to amend, terminate or modify at any time all plans or arrangements providing for any IVAX Foreign Benefit retiree health or life insurance coverage.
(ix) Section 4.1(l)(ix) of the UDS Disclosure Schedule sets forth (A) an accurate and complete list of each UDS Plan funded through insurance under which the execution and delivery of this Agreement or the book reserve established for any IVAX Foreign Benefit Plan, together consumma- tion of the transactions contemplated hereby could (either alone or in conjunction with any accrued contributionsother event), is sufficient result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit (including the forgiveness of indebtedness) to procure any employee, officer or provide for director of UDS or any of its Subsidiaries, or could limit the accrued benefit obligationsright of UDS or any of its Subsidiaries to amend, as merge, terminate or receive a reversion of assets from any UDS Plan or related trust or any material employment agreement or related trust, (B) a reasonable good faith estimate of the maximum amount of the severance benefits that could become payable to officers and senior management of UDS if their employment were terminated at the Effective Time, 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 IVAX 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
(iiiC) each IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in a reasonable good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) faith estimate of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As maximum amount of the date "excess parachute payments" within the meaning of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As Section 280G of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice Code that could become payable by UDS and its Subsidiaries in connection with the operation execution and delivery of this Agreement and the consummation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effecttransactions contemplated hereby.
(ex) IVAX has delivered Except as would not reasonably be expected, individually or in the aggregate, to Bergen true have a Material Adverse Effect on UDS, all UDS Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements; (B) if they are intended to qualify for special tax treatment meet all requirements for such treatment; and complete copies (C) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(xi) With respect to any UDS Benefit Plan that is an "employee stock ownership plan" within the meaning of Section 4975(e)(7) of the Code (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000an "ESOP"), (iiA) all severance planseach loan under which the ESOP was a borrower (each, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employeesa "Loan") has been fully repaid, and (iiiB) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits securities of UDS that were acquired with such Loan have been released from the pledge made in connection with the Loan and fully allocated to any personthe accounts of participants in the ESOP in accordance with the requirements of Treasury Regulations Sections 54.4975-7 and 54.4975-11.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to Section 3.9(a) of the Company Disclosure Schedule sets forth a true and complete list as of the date hereof of each material employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained ), maintained, or contributed to to, by IVAX the Company or any IVAX Company Subsidiary, or with respect to which IVAX the Company or any IVAX Company Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA is required to contribute (the "IVAX Company Benefit Plans"). With respect to each Company Benefit Plan, IVAX the Company has heretofore delivered or made available to Bergen Parent a true true, correct and correct complete copy of: (1) each writing constituting a part of such Company Benefit Plan, including without limitation all plan documents, trust agreements, and insurance contracts and other funding vehicles; (i2) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (3) the current summary plan description related and any material modifications thereto, if any (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii4) the most recent annual report financial report, if any; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv5) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report, if any; and (v6) the most recent determination letter issued by from the IRS with respect IRS, if any. Except as specifically provided in the foregoing documents delivered to Parent, there are no amendments to any IVAX Company Benefit Plan qualified under Section 401(a) of that have been adopted or approved nor has the CodeCompany or any Company Subsidiary undertaken to make any such amendments or to adopt or approve any new Plan.
(b) Each IVAX With respect to each Company Benefit Plan which is subject to Title IV of ERISA, or Section 302 of ERISA or Section 412 or 4971 of the Code (1) the present value of accrued benefits under such Company Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Company Benefit Plan's actuary with respect to such Company Benefit Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Company Benefit Plan allocable to such accrued benefits, (2) no "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Company Benefit Plan for which the 30-day notice requirement has not been waived, (3) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (4) all premiums to the Pension Benefit Guaranty Corporation ("PBGC") have been timely paid in full, (5) except as set forth in Section 3.9(b) of the Company Disclosure Schedule, no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company or any of its subsidiaries, and (6) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan and, to the Company's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Benefit Plan. No Company Benefit Plan is a "multiemployer pension plan" (as such term is defined in section 3(37) of ERISA) (a "Multiemployer Plan") or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "Multiple Employer Plan"). Neither the Company nor any Company Subsidiaries nor any of their respective ERISA Affiliates t any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan, or (2) incurred any withdrawal liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan that has not been satisfied in full. Except as set forth in Section 3.9(b) of the Company Disclosure Schedule, there does not now exist, nor, to the knowledge of the Company, do any circumstances exist that could result in, any liability that would be a liability of the Company or any of the Company Subsidiaries following the Closing (1) under Title IV of ERISA, (2) under section 302 of ERISA, (3) under sections 412 and 4971 of the Code, or (4) as a result of a failure to comply with the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, other than such liabilities that arise solely out of, or relate solely to, the Company Benefit Plans.
(c) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with its terms applicable Laws and all contributions required administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, except where a violation of any such Law, rule or regulation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each of the Company Benefit Plans intended to be made under "qualified" within the terms meaning of Section 401(a) of the Code has received a favorable determination letter as to such qualification from the IRS, and no event has occurred, either by reason of any action or failure to act, which would cause the loss of the IVAX Benefit Plans as of the date of this Agreement have been timely made any such qualification, except where such action or have been reflected on the most recent consolidated balance sheet filed failure to act can be cured without having, individually or incorporated by reference in the IVAX Reports prior to the date of this Agreementaggregate, a Company Material Adverse Effect. Except as set forth in Section 3.09(b3.9(c) of the IVAX Company Disclosure Schedule, no Company Benefit Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees of the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX Company or any IVAX Company Subsidiary could be subject to beyond their retirement or other termination of service, other than (1) coverage mandated by applicable Law, (2) death benefits or retirement benefits under any liability under "employee pension plan" (as such term is defined in Section 3(2) of ERISA), (3) deferred compensation benefits accrued as liabilities on the terms books of such IVAX Benefit Plans, ERISA, the Code Company or any Company Subsidiary or (4) benefits the full cost of which is borne by the current or former employee (or his beneficiary). All contributions or other applicable Law which would individually amounts payable by the Company or in the aggregate have an IVAX Material Adverse Effect.
(c) Except any Company Subsidiary as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, Effective Time with respect to each IVAX Company Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law in respect of current or by the terms of such IVAX Foreign Benefit Plan prior plan years will have been made or, if applicable, paid or accrued by such time in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiesGAAP.
(d) Except as set forth in Section 3.09(d3.9(d) of the IVAX Company Disclosure Schedule, neither IVAX the Company nor any IVAX Company Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX the Company or any IVAX Subsidiary Company Subsidiary, and no collective bargaining agreement or other labor union contract is being negotiated by IVAX the Company or any IVAX Company Subsidiary. As of the date of this Agreement, there There is no labor dispute, strike strike, slowdown or work stoppage against IVAX the Company or any IVAX Company Subsidiary pending or, to the knowledge of IVAXthe Company, threatened which may interfere in any respect that would have a Company Material Adverse Effect with the respective business activities of IVAX the Company or any IVAX Company Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to To the knowledge of IVAXthe Company, none of IVAXthe Company, any IVAX Subsidiary, Company Subsidiary or any of their respective representatives or employees has committed any unfair labor practice practices in connection with the operation of the respective businesses of IVAX the Company or any IVAX Company Subsidiary, and there is no charge or complaint against IVAX the Company or any IVAX Company Subsidiary by the National Labor Relations Board or any comparable governmental state or foreign agency pending or threatened in writingor, to the knowledge of the Company, threatened, except where such unfair labor practice, charge or complaint would not not, individually or in the aggregate, reasonably be expected to have an IVAX a Company Material Adverse Effect.
(e) IVAX The Company has delivered identified in Section 3.9(e) of the Company Disclosure Schedule and has made available to Bergen Parent true and complete copies of (i1) all severance and employment agreements with officers directors, executive officers, key employees or consultants of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, the Company; (ii2) all severance plans, agreements, programs and policies of IVAX each of the Company and each IVAX Company Subsidiary with or relating to their respective its employees, ; and (iii3) all plans, programs, agreements and other arrangements of IVAX each of the Company and each IVAX Company Subsidiary with or relating to their respective its employees which contain "change of control" in control provisions.
(f) . Except as provided set forth in Section 3.09(f3.9(e) of the IVAX Company 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 other event, such as termination of employment) (A) result in any material payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any director or any employee of the Company or any Company Subsidiary or affiliate from the Company or any Company Subsidiary or affiliate under any Company Benefit Plan or otherwise, (B) materially increase any benefits otherwise payable under any Company Benefit Plan or (C) result in any acceleration of the time of payment or vesting of any material benefits. No individual who is a party to an employment agreement listed in Section 3.9 (a) of the Disclosure Schedule or as otherwise required by Lawany change-of-control employment agreement with the Company has terminated employment or been terminated, no IVAX Benefit Plan provides retiree medical nor has any event occurred that could give rise to a termination event, in either case under circumstances that has given, or retiree life insurance benefits could give, rise to any persona severance obligation on the part of the Company under such agreement.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ), sponsored, maintained or contributed to, or to which there is an obligation to contribute, by IVAX or any IVAX SubsidiaryB, or with respect to which IVAX or any IVAX Subsidiary B could incur liability under Title IV of ERISA, including, but not limited to, Section 4069, 4212(c) or 4204 of ERISA (the "IVAX B Benefit Plans"), IVAX B has delivered or made available to Bergen A and the Company a true and correct copy of (i) such IVAX B Benefit Plan and all amendments thereto and the most recent summary plan description related to each IVAX B Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or and/or financial statement statement, if any, relating to an IVAX any B Benefit Plan and Plan, (v) the most recent determination letter letter, if any, issued by the IRS with respect to any IVAX B Benefit Plan qualified under Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten B Benefit Plans, if any.
(b) Each IVAX To the knowledge of B, each B Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX B Benefit Plans as of the date of this Agreement hereof have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX B SEC Reports prior to the date of this Agreementhereof. Except as set forth in Section 3.09(b) All of the IVAX Disclosure ScheduleB Benefit Plans are in compliance with all applicable requirements of Law, with respect including ERISA and the Code, except to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or extent that any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which non-compliance would individually or in the aggregate not have an IVAX a B Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) There are no pending actions, claims or lawsuits that have been asserted regarding the B Benefit Plans directly or, to the knowledge of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse EffectB, against any fiduciary of any B Benefit Plan with respect to each IVAX Benefit Plan that is not subject to United States Law their operation (an "IVAX Foreign Benefit Plan"):
(iother than routine benefit claims) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued which could result in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiesliability.
(d) Except There is no B Benefit Plan that is a "multiemployer plan" (within the meaning of Section 3(37) of ERISA).
(e) Each B Benefit Plan which is a "group health plan" (as set forth defined in Section 3.09(d607(1) of ERISA) is in compliance with Section 601 et seq. of ERISA, the IVAX Disclosure ScheduleHealth Insurance Portability and Accountability Act and any other applicable federal, neither IVAX nor any IVAX Subsidiary state or local Law.
(f) B is not a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or B and is not negotiating any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiaryagreements. As of the date of this Agreementhereof, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary B pending or, to the knowledge of IVAXB, threatened in writing which may interfere with the respective business activities of IVAX or any IVAX SubsidiaryB, except where such dispute, strike or work stoppage would not have an IVAX a B Material Adverse Effect. As of the date of this Agreementhereof, to the knowledge of IVAXB, none of IVAX, any IVAX Subsidiary, B or any of their respective its representatives or employees employees, has committed any unfair labor practice practices in connection with the operation of the respective businesses business of IVAX or any IVAX SubsidiaryB, and there is no charge or complaint against IVAX or any IVAX Subsidiary B by the National Labor Relations Board or any comparable governmental federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX a B Material Adverse Effect.
(eg) IVAX B has delivered to Bergen A true and complete correct copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, B; (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary B with or relating to their respective its employees, and ; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under Section 162(m) of IVAX the Code; and each IVAX Subsidiary (iv) all plans, programs, agreements and other arrangements of B with or relating to their respective its employees which contain "change of control" in control provisions.
(fh) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX B Benefit Plan provides provides, or has liability with respect to, retiree medical or other retiree life insurance welfare benefits to any person.
(i) B is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of Section 280G of the Code (disregarding Section 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of B to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of B; (iii) reasonably be expected to result in any "excess parachute payment" under Section 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) B has no material liability, whether absolute or contingent, including any material obligations under any B Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) B has not entered into any transaction with any B Benefit Plan.
(m) Section 3.10(m) of the B Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with B and the amount of cash severance payments to which each such person would be entitled thereunder and (ii) with respect to any formal or informal severance program, plan or arrangement of B that does not involve an individual agreement between B and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(n) Section 3.10(n) of the B Disclosure Schedule sets forth a true and correct list of all persons who hold B Options, and sets forth, for each such person, (i) the number of shares of B Common Stock underlying the B Options held by such person as of the date hereof, (ii) the exercise price per share with respect to each such B Option, (iii) the expiration date for such B Option, and (iv) the Cash-Out Amount (as defined below) with respect to the B Options (whether
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX CGI or any IVAX CGI Subsidiary, or with respect to which IVAX CGI or any IVAX CGI Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX CGI Benefit Plans"), IVAX CGI has delivered or made available to Bergen STC a true true, complete and correct copy of (i) such IVAX CGI Benefit Plan and the most recent summary plan description related to each IVAX such CGI Benefit Plan for which Plan, if a summary plan description is requiredrequired therefor, (ii) each 41 35 trust agreement or other funding arrangement relating to such IVAX CGI Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS")IRS with respect to such CGI Benefit Plan, (iv) the most recent actuarial report or financial statement relating to an IVAX such CGI Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX such CGI Benefit Plan Plan, if it is qualified under Section 401(a) of the Code.
(b) Each IVAX CGI Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX CGI Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX CGI Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b5.09(b) of the IVAX CGI Disclosure Schedule, with respect to the IVAX CGI Benefit Plans, no event has occurred and, to the knowledge of IVAXCGI, there exists no condition or set of circumstances in connection with which IVAX CGI or any IVAX CGI Subsidiary could be subject to any liability under the terms of such IVAX CGI Benefit Plans, ERISA, the Code or any other applicable Law which would could reasonably be expected to have, individually or in the aggregate have an IVAX aggregate, a CGI Material Adverse Effect.
(c) Except as set forth in Section 3.09(c5.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX CGI Disclosure Schedule, neither IVAX CGI nor any IVAX CGI Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX CGI or any IVAX CGI Subsidiary and no collective bargaining agreement is being negotiated by IVAX CGI or any IVAX CGI Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX CGI or any IVAX CGI Subsidiary pending or, to the knowledge of IVAXCGI, threatened which may interfere with the respective business activities of IVAX CGI or any IVAX CGI Subsidiary, except where such dispute, strike or work stoppage would could not have an IVAX reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAXCGI, none of IVAXCGI, any IVAX CGI Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX CGI or any IVAX CGI Subsidiary, and there is no charge or complaint against IVAX CGI or any IVAX CGI Subsidiary by the National Labor Relations Board or any comparable governmental agency Governmental Entity pending or threatened in writing, except where such unfair labor practice, charge or complaint would could not have an IVAX reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f5.09(e) of the IVAX CGI Disclosure Schedule or as otherwise required by Law, no IVAX CGI Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each Section 2.11(a) of the Disclosure Letter lists as of the date hereof all employee benefit plan, program, arrangement and contract plans (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) ), and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, health, life, or disability insurance, dependent care, severance and other similar fringe or employee benefit plans, programs or arrangements and any current or former employment or executive compensation or severance agreements, written or otherwise, maintained, contributed to or required to be maintained or contributed to by IVAX for the benefit of or relating to any IVAX Subsidiaryemployee or former employee of the Company, any trade or business (whether or not incorporated) that is a member of a controlled group including the Company or that is under common control with the Company within the meaning of Section 414 of the Code (an “ERISA Affiliate”), as well as each plan with respect to which IVAX the Company or any IVAX Subsidiary an ERISA Affiliate could incur liability under Section 4069, 4069 (if such plan has been or were terminated) or Section 4212(c) or 4204 of ERISA (together, the "IVAX Benefit “Employee Plans"”), IVAX . The Company has delivered or made available to Bergen Parent a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, two (ii2) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (reports on Form 5500) 5500 filed with the Internal Revenue Service (the "“IRS"”) for each disclosed Employee Plan where such report is required; (ii) the documents and instruments governing each such Employee Plan (other than those referred to in Section 4(b)(4) of ERISA); (iii) all trust documents and custodial agreements relating to each Employee Plan, (iv) the most recent actuarial report or financial statement current summary plan description and each summary of material modifications relating to an IVAX Benefit Plan and each Employee Plan; (v) the most recent IRS determination letter issued by received with respect to each Employee Plan intended to qualify for favorable tax treatment under Section 401(a) of the IRS Code; (vi) all insurance contracts, investment management or advisory agreements, audit reports, relating to each Employee Plan; and (vii) all material correspondence with any Governmental Entity relating to each Employee Plan. No Employee Plan is subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any ERISA Affiliate has incurred any liability (contingent or otherwise) with respect to any IVAX Benefit such Employee Plan. Each Employee Plan has been maintained in all material respects, by its terms and in operation, in accordance with ERISA, the Code and other applicable law, and there has been no material violation of any reporting or disclosure requirement imposed by ERISA or the Code. Each Employee Plan intended to be qualified under Section 401(a) of the Code.
(b, and each trust intended to be exempt under Section 501(a) Each IVAX Benefit Plan of the Code, has been administered in all material respects in accordance with its terms and all contributions required determined to be made under so qualified or exempt by the terms of any of the IVAX Benefit Plans as of IRS, and since the date of this Agreement have been timely made or have been reflected on the each most recent consolidated balance sheet filed determination, there has been no event, condition or incorporated by reference circumstance that has adversely affected or could reasonably be expected to adversely affect such qualified status. No Employee Plan has participated in, engaged in the IVAX Reports prior or been a party to the date of this Agreement. Except as set forth in any transaction that is prohibited under Section 3.09(b) 4975 of the IVAX Disclosure ScheduleCode or Section 406 of ERISA and not exempt under Section 4975 of the Code or Section 408 of ERISA, with respectively. With respect to any Employee Plan, (i) neither the IVAX Benefit PlansCompany, no event nor any of its ERISA Affiliates has occurred andhad asserted against it any claim for taxes under Chapter 43 of Subtitle D of the Code and Section 5000 of the Code, or for penalties under ERISA Section 502(c), (i) or (l), nor, to the knowledge of IVAXthe Company, is there exists no condition or set of circumstances in connection with which IVAX or a basis for any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plansclaim, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market value no officer, director or employee of the assets Company has committed a material breach of each funded IVAX Foreign Benefit Plan, the liability any fiduciary responsibility or obligation imposed by Title I of each insurer ERISA. Other than routine claims for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreementbenefits, there is no labor dispute, strike claim or work stoppage against IVAX proceeding (including any audit or any IVAX Subsidiary investigation) pending or, to the knowledge of IVAXthe Company, threatened which may interfere with threatened, involving any Employee Plan by any person, or by the respective business activities IRS, the United States Department of IVAX Labor or any IVAX Subsidiary, except where other Governmental Entity against such dispute, strike Employee Plan or work stoppage would not have an IVAX Material Adverse Effect. As the Company or any ERISA Affiliate.
(b) Section 2.11(b) of the Disclosure Letter sets forth a list as of the date hereof of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of all (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000the Company or any ERISA Affiliate, (ii) all agreements with consultants who are individuals obligating the Company or any ERISA Affiliate to make annual cash payments in an amount of $200,000 or more, (iii) severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary the Company with or relating to their respective its employees, except such programs and policies required to be maintained by applicable law, and (iiiiv) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary the Company or any ERISA Affiliate with or relating to its employees that contain change in control provisions whether or not listed in other parts of the Disclosure Letter. The Company has made available to Parent copies of all such agreements, plans, programs and other arrangements.
(c) There will be no payment, accrual of additional benefits, acceleration of payments or vesting of any benefit under any Employee Plan or any other agreement or arrangement to which the Company or any ERISA Affiliate is a party, and no employee, officer or director of the Company or any ERISA Affiliate will become entitled to severance, termination allowance or similar payments, solely by reason of entering into or in connection with the transactions contemplated by this Agreement (either alone or in combination with each other).
(d) No Employee Plan that is a welfare benefit plan within the meaning of Section 3(1) of ERISA provides benefits to former employees of the Company or its ERISA Affiliates other than pursuant to Section 4980B of the Code or similar state laws. The Company and its ERISA Affiliates have complied in all material respects with the provisions of Part 6 of Title I of ERISA and Sections 4980B, 9801, 9802, 9811 and 9812 of the Code.
(e) There are no controversies relating to any Employee Plan or other labor matters pending or, to the knowledge of the Company, threatened between the Company or any ERISA Affiliate and any of its employees. Neither the Company nor any ERISA Affiliate is a party to or bound by any collective bargaining agreement, collective labor agreement or other contract or arrangement with a labor union, trade union or other organization applicable to persons employed by the Company or any ERISA Affiliate nor does the Company nor any ERISA Affiliate know of any activities or proceedings of any labor union to organize any such employees, or is otherwise required (under any legal requirement, contract or otherwise) to provide benefits or working conditions beyond the minimum benefits and working conditions required by applicable law to be provided pursuant to rules and regulations of any jurisdiction in which the Company and its Subsidiaries have employees, including the Histadrut (General Federation of Labor), the Coordination Bureau of Economic Organization and the Industrialists’ Association, and the Company has not been officially apprised that any petition has been filed or proceeding instituted by an employee or group of employees of the Company or any Subsidiary, with any Governmental Entity seeking recognition of a bargaining representative. Except as set forth in Section 2.11 of the Disclosure Letter, neither the Company nor any Subsidiary has or is subject to, and no employee of the Company or any Subsidiary benefits from, any extension order (tzavei harchava) or any contract or arrangement with respect to termination of employment. All of the employees of the Company and its Subsidiaries are “at will” employees subject to the termination notice provisions included in employment agreements or applicable law. No strikes, work stoppage, material grievance, material claim of unfair labor practice, or dispute against the Company or any ERISA Affiliate has occurred, is pending or, to the knowledge of the Company or any ERISA Affiliate, threatened, and to the knowledge of the Company and its ERISA Affiliates there is no basis for any of the foregoing. To the knowledge of the Company and its ERISA Affiliates, none of their respective employees which contain "change is a member of control" provisionsany labor union, there is no organizational activity being made or threatened by or on behalf of any labor union with respect to any employees of the Company or any ERISA Affiliate. Neither the Company nor any of its ERISA Affiliates has a workers’ committee (including any “Vaad Ovdim” or similar committee or organization).
(f) Except Neither the Company nor any of its ERISA Affiliates sponsors or has ever sponsored, maintained, contributed to, or incurred an obligation to contribute or incurred a liability (contingent or otherwise) with respect to any Multiemployer Plan or to a Multiple Employer Plan. For these purposes, “Multiemployer Plan” means a multiemployer plan, as provided defined in Section 3.09(f3(37) and 4001(a)(3) of ERISA, and “Multiple Employer Plan” means any Employee Benefit Plan sponsored by more than one employer, within the meaning of Sections 4063 or 4064 of ERISA or Section 413(c) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any personCode.
Appears in 1 contract
Samples: Merger Agreement (Verisity LTD)
Employee Benefit Plans; Labor Matters. (a) With respect to Section 3.10 of the Matrix Disclosure Schedule describes each employee benefit plan, program, arrangement and contract (including, without limitationMatrix Benefit Plan which either Matrix, any "employee benefit plan"Subsidiary or any other entity that, together with Matrix or such Subsidiary, would be treated as defined in a single employer under Code Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended 414 ("ERISAERISA Affiliate")) maintained has sponsored, maintained, contributed to, or contributed to by IVAX which such entities has or has had any obligation or any IVAX Subsidiaryliability of any nature (whether contingent or otherwise) on or before the date of Closing for the benefit of employees of either Matrix, any Subsidiary or any ERISA Affiliate, or with respect to which IVAX Matrix, any Subsidiary or any IVAX Subsidiary ERISA Affiliate could reasonably be expected to incur any liability under Section 4069(whether contingent or otherwise). With respect to each Matrix Benefit Plan, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX has delivered or made available to Bergen a true and correct copy of (i) such IVAX each Matrix Benefit Plan which has been reduced to writing, (ii) written summaries of all unwritten Matrix Benefit Plans, (iii) each related trust agreement and insurance contract, if any, relating to such Matrix Benefit Plan, (iv) the most recent summary plan description related to of each IVAX Matrix Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating including any modifications communicated to such IVAX Benefit Planparticipants, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS Internal Revenue Service ("IRS") and the full and complete determination letter application and correspondence relating to such determination letter request with respect to any IVAX Matrix Benefit Plan that is intended to be qualified under Section 401(a) 401 of the CodeCode ("Qualified Plans"), (vi) Internal Revenue Service Forms 5500 for each Matrix Benefit Plan for each of the three (3) most recent plan years, (vii) the most recent actuarial report, if any, for each Matrix Benefit Plan, (viii) all contracts with third party administrators, actuaries, investment managers, consultants, and other independent contractors that relate to any Matrix Benefit Plan, (ix) all reports prepared and distributed within the four (4) years preceding the date of this Agreement by third party administrators, actuaries, investment managers, consultants, or other independent contractors with respect to any Matrix Benefit Plan, (x) all notifications to employees of their rights under ERISA ss. 601 et seq. and Section 4980B of the Code (commonly referred to as "COBRA"), (xi) all notices that were given by Matrix, any ERISA Affiliate or any Matrix Benefit Plan to the IRS or any participant or beneficiary, pursuant to statute, within the four (4) years preceding the date of this Agreement, including notices that are expressly mentioned elsewhere in this Agreement, and (xii) all notices that were given by the IRS or the Department of Labor to Matrix, any ERISA Affiliate or any Matrix Benefit Plan within the four (4) years preceding the date of this Agreement, will be described in, or attached to Section 3.10 of the Matrix Disclosure Schedule or delivered to Denbury within a reasonable period of time (not less than thirty (30) days) before the Closing.
(b) Each IVAX of the Matrix Benefit Plan Plans is in compliance (both in form and operation) and has been administered in all material respects in accordance with its terms and with all applicable laws, including, but not limited to ERISA and the Code; each of Matrix, and its Subsidiaries and ERISA Affiliate has met its obligations with respect to such Matrix Benefit Plans; and no Matrix Benefit Plan has an accumulated or waived funding deficiency within the meaning of Section 412 of the Code. Neither Matrix nor any of its Subsidiaries or ERISA Affiliates is contribution or has contributed to a "multi-employer plan," as defined in Section 3(37) of ERISA, and neither Matrix nor any of its Subsidiaries or ERISA Affiliates has any past, present or future obligation or liability to contribute to any multi- employer plan. Neither Matrix nor any of its Subsidiaries or ERISA Affiliates has completely or partially withdrawn from any multi-employer plan with respect to which there is any outstanding liability as of the date of this Agreement. Neither Matrix nor of its Subsidiaries or ERISA Affiliates has, directly or indirectly, any liability (including any contingent liability) to or on account of a Matrix Benefit Plan under Sections 409 or 502 of ERISA or Section 4975 of the Code or pursuant to Title IV of ERISA. As of the date of this Agreement, no condition exists that presents a risk to Matrix or any of its Subsidiaries or ERISA Affiliates of incurring such a liability. No proceedings have been instituted to terminate any Matrix Benefit Plan that is subject to Title IV of ERISA and the Pension Benefit Guaranty Corporation is not expected to institute any such proceedings, and no "reportable event," as such term in defined in Section 4043 of ERISA has occurred with respect to any Matrix Benefit Plan.
(c) The current value of the assets of each of the Matrix Benefit Plans, based upon reasonable actuarial assumptions, if applicable, equals or exceeds the present value of the accrued benefits under each such Matrix Benefit Plan and all contributions required to be made under the terms of or other amounts payable by Matrix and any of the IVAX Benefit Plans its Subsidiaries and ERISA Affiliates as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Matrix Benefit Plan that is not subject to United States Law in respect of current or prior plan years has been either paid or accrued on Matrix's (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, its ERISA Affiliate's) December 31, 2000 balance sheet, or accrued in accordance with normal accounting practices;
(ii) the fair market value of the assets of since December 31, 2000. With respect to each funded IVAX Foreign Matrix Benefit Plan, there are no pending, or, to the liability best knowledge of each insurer Matrix and any of its Subsidiaries and ERISA Affiliates, threatened or anticipated termination proceedings, investigations, audits, suits or other claims or proceedings (other than routine claims for benefits) by, on behalf of, or against (directly or indirectly) any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective TimeMatrix Benefit Plans, Matrix or any of its Subsidiaries or ERISA Affiliates or any trusts related thereto (or 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 IVAX Foreign Benefit Plan and no transaction contemplated by this Agreement shall cause such assets any rights or insurance obligations to be less than such benefit obligations; and
(iii) each IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiesbenefits thereunder).
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any There are no collective bargaining or other labor union contract applicable contracts to persons employed by IVAX which Matrix or any IVAX Subsidiary of its Subsidiaries or ERISA Affiliates is a party and no collective bargaining agreement is being negotiated by IVAX Matrix or any IVAX Subsidiaryof its Subsidiaries or ERISA Affiliates. As of the date of this Agreement, there There is no pending or, to the best knowledge of Matrix or any of its Subsidiaries or ERISA Affiliates, threatened labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, Matrix or any of their respective representatives its Subsidiaries or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse EffectERISA Affiliates.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in set forth on Section 3.09(f) 3.10 of the IVAX Matrix Disclosure Schedule or as otherwise required by LawSchedule, no IVAX Matrix Benefit Plan provides retiree medical or other retiree life welfare benefits and neither Matrix nor any of its Subsidiaries or ERISA Affiliates is contractually or otherwise obligated, by written or oral representation, promising or guaranteeing any employer payment or funding medical, dental, disability or other welfare benefits upon retirement or termination of employment of employees beyond that legally required, but excluding continuation of health coverage required to be continued under Section 4980B of the Code and insurance conversion privileges under state law. There are no unfunded obligations under any Matrix Benefit Plan providing benefits after termination of employment of any employee of Matrix or any of its Subsidiaries or ERISA Affiliates (or to any personbeneficiary of any such employee), including but not limited to, deferred compensation. No unwritten amendment exists with respect to any Matrix Benefit Plan.
(f) Neither Matrix nor any of its Subsidiaries or ERISA Affiliates contributes to or has an obligation to contribute to, or has any liability (whether contingent or otherwise) with respect to or concerning an employee benefit plan that is or was subject to Title IV of ERISA or Section 412 of the Code. No Matrix Benefit Plan has been subject to Section 412 of the Code.
(g) No transaction prohibited by ERISA and no "prohibited transaction" under Code Section 4975 has occurred with respect to any Matrix Benefit Plan. All "fiduciaries," as defined in ERISA Section 3(21), with respect to the Matrix Benefit Plans have complied in all respects with the fiduciary requirements and provisions of ERISA and Code Section 4975. Neither Matrix nor any of its Subsidiaries or ERISA Affiliates has any liability (whether contingent or otherwise) to the IRS or any governmental entity with respect to any Matrix Benefit Plan.
(h) Except as described on Section 3.10 of the Matrix Disclosure Schedule, each Matrix Benefit Plan provides that it may be amended or terminated at any time. Further, (i) no Matrix Benefit Plan, plan documentation or agreement, summary plan description or other written communication distributed generally to employees prohibits Matrix or any of its Subsidiaries or ERISA Affiliates from amending or terminating any such Matrix Benefit Plan; (ii) no action or omission of Matrix or any of its Subsidiaries or ERISA Affiliates or any director, officer, employee, or agent thereof in any way restricts, impairs or prohibits Denbury or any successor from amending, merging, or terminating any Matrix Benefit Plan in accordance with the express terms of any such plan and applicable law; and (iii) each Matrix Benefit Plan can be terminated within thirty (30) days and as of the Closing, without payment of any additional contribution or amount and without creating any unfunded or unaccrued liability or the vesting or acceleration of any benefits promised by such plan, except to the extent full vesting is required under Code Section 411(d)(3) with regard to the termination of any Qualified Plan.
(i) The Matrix Benefit Plan that is a Qualified Plan has an effective date of January 1, 1997 and shall be terminated effective as of a date that precedes the Closing Date. No event or omission has occurred or circumstances exist that would prevent the receipt of a favorable determination letter from the IRS in response to the submission. No event or omission has occurred that would adversely affect any Qualified Plan's qualification or increase its costs.
(j) Neither Matrix nor any of its Subsidiaries or ERISA Affiliates has, prior to the Closing Date and in any respect, violated any of the health care continuation requirements of COBRA, the requirements of Family Medical Leave Act of 1993, ("FMLA"), if applicable, the requirements of the Health Insurance Portability and Accountability Act of 1996, the requirements of the Women's Health and Cancer Rights Act of 1998, the requirements of the Newborns' and Mothers' Health Protection Act of 1996, or any amendment to each such act, or any similar provisions of state law applicable to its employees. Matrix and each of its Subsidiaries and ERISA Affiliates has in all instances in the last thirty-six (36) months reserved the right to provide an administrative fee of two percent (2%) or fifty percent (50%), as applicable under COBRA.
(k) Neither Matrix nor any of its Subsidiaries or ERISA Affiliates has nor has either singularly or collectively ever had, the obligation to, maintain, establish, sponsor, participate in, or contribute to any International Benefit Plan. "International Benefit Plan" means each Matrix Benefit Plan that has been adopted or maintained by Matrix or any of its Subsidiaries or ERISA Affiliates, whether informally or formally, or with respect to which Matrix and any of its Subsidiaries or ERISA Affiliates will or may have any liability, for the benefit of employees who perform services outside the United States.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each material employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit PlansBENEFIT PLANS"), IVAX has delivered or made available to Bergen Hafslund Nycomed a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is requiredPlan, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual actuarial report or valuation relating to an IVAX Benefit Plan subject to Title IV of ERISA, and (Form 5500iv) filed with the most recent determination letter, if any, issued by the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b5.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except In addition to the foregoing, and except as set forth in Section 3.09(c5.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an a "IVAX Foreign Benefit PlanFOREIGN BENEFIT PLAN"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practicespractices and a pro rata contribution for the period from the date hereof to and including the Effective Time has been made or accrued in accordance with normal accounting principles;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate applicable regulatory authorities.
(d) Except as set forth in Section 3.09(d5.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, or threatened in writing which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees employees, has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered made available to Bergen Hafslund Nycomed true and complete copies of (i) all severance and employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation who in the fiscal year ended December 31, 1994 received a base salary in excess of $250,000, 200,000; (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective its employees, ; and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective its employees who in the fiscal year ended December 31, 1994 received a base salary in excess of $200,000 which contain "change of control" control provisions.
(f) Except as provided in Section 3.09(f5.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With Except as listed on the attached Employee Benefits Schedule, neither the Partnership nor any of its Subsidiaries sponsors, maintains, contributes to or has any liability with respect to each employee benefit any “pension plan, program, arrangement and contract ” (including, without limitation, any "employee benefit plan", as defined in under Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)), any “welfare plan” (as defined under Section 3(1) maintained or contributed to by IVAX of ERISA) or any IVAX Subsidiarymaterial employment, consulting or similar contract, arrangement or policy or any material plan, agreement, policy or arrangement for insurance coverage (including, but not limited to, any self-insured arrangements), severance, retention, change in control, salary continuation, educational assistance, supplemental unemployment benefits, vacation benefits and other paid leave, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights or other forms of incentive compensation or post-retirement compensation or benefit that is not an “employee benefit plan” (as defined under Section 3(3) of ERISA) (the “Plans”).
(b) Neither the Partnership nor any Subsidiary has any liability with respect to which IVAX a “pension plan” subject to Title IV of ERISA, actual or any IVAX Subsidiary could incur potential withdrawal liability under with respect to a multiemployer plan, as defined in Section 40693(37) of ERISA, 4212(cor a “pension plan” subject to Sections 4063 or 4064 of ERISA.
(c) or 4204 True and complete copies of ERISA the following documents with respect to each Plan (the "IVAX Benefit Plans"), IVAX has delivered or as applicable) have been made available to Bergen a true and correct copy of the Buyer: (i) such IVAX Benefit Plan any plan documents, all amendments thereto and any related trust documents, insurance contracts or other funding arrangements and amendments thereto, (ii) the most recent Form 5500 and all schedules thereto and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is requiredactuarial report, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Planif any, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS")determination or opinion letter, (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan summary plan descriptions, and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified under Section 401(a) written summaries of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit and benefits under non-written Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth on the attached Employee Benefits Schedule or as would not reasonably be expected to result in a material liability to the Partnership:
(i) each Plan has been maintained in accordance with its terms and all applicable provisions of ERISA, the Code and other applicable laws, and nothing has occurred with respect to the operation of the Plans that could cause the imposition of any material liability, penalty or tax under ERISA or the Code;
(ii) there are no actions, claims (other than routine benefit claims) or lawsuits pending against any of the Plans, the assets of any of the trusts under such Plans or the Plan sponsor or the Plan administrator, or against any fiduciary of any Plan with respect to the operation of such Plan, nor does the Partnership have Knowledge of any threatened action, claim or lawsuit;
(iii) each Plan intended to be qualified under Section 3.09(d401(a) of the IVAX Disclosure Code has received a favorable prototype opinion letter from the Internal Revenue Service that it is so qualified and the Partnership does not have Knowledge of any occurrences that would reasonably be expected to adversely affect the qualified status of the Plan; and
(iv) None of the Plans promises nor provides post-employment welfare benefits except as required under Section 4980B of the Code or similar state laws.
(e) All contributions required to have been made under any Plan have been timely made and all contributions for any period ending on or before the Closing Date that are not yet due will have been paid or sufficient accruals for such contributions and other payments in accordance with GAAP.
(f) Except for the Retention Agreements and Other Benefits set forth on the Employee Benefits Schedule, neither IVAX the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will (i) result in any payment becoming due and payable to any current or former employee or director of the Partnership or any Subsidiary, (ii) increase any benefits otherwise payable under any Plan or (iii) result in the acceleration of the time of payment or vesting of any right to such benefit under any Plan.
(g) Neither the Partnership nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX agreement covering any of its employees. There (i) is no unfair labor practice charge or complaint against the Partnership or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge Knowledge of IVAXthe Partnership, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by before the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000Board, (ii) all severance plansis no labor strike pending or, agreementsto the Knowledge of the Partnership, programs and policies of IVAX and each IVAX Subsidiary with threatened against the Partnership or relating to their respective employeesany Subsidiary, and or (iii) all planshas not been any organized stoppage, programslockout or slowdown by any group of employees of the Partnership or any Subsidiary in effect or, agreements and other arrangements to the Knowledge of IVAX and each IVAX the Partnership, threatened. There are no complaints, charges or claims against the Partnership or any Subsidiary pending or, to the Knowledge of the Partnership, threatened which would reasonably be expected to be brought or filed, with any Governmental Entity based on, arising out of, in connection with, or otherwise relating to their respective employees which contain "change the employment or termination of control" provisionsemployment or failure to employ by the Partnership or any Subsidiary, of any individual. There has been no “mass layoff” or “plant closing” as defined by the Worker Adjustment, Retraining and Notification Act, 29 U.S.C. § 2101, et seq. (“WARN”) and any similar state or local “mass layoff” or “plant closing” law with respect to the Partnership or any Subsidiary within the six (6) months prior to Closing.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Samples: Merger Agreement (Yell Finance Bv)
Employee Benefit Plans; Labor Matters. (ai) Section 4.2(m)(i) of the VLI Disclosure Schedule includes a complete list of all VLI Benefit Plans.
(ii) With respect to each employee benefit planVLI Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX VLI has delivered or made available to Bergen the Kaneb Entities, as applicable, a true true, correct and correct complete copy of: (A) each VLI Plan document or a summary of any unwritten VLI Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule; (C) the current summary plan description related and any material modifications thereto (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report; and (vF) the most recent determination letter issued by from the IRS with respect Internal Revenue Service. Except as specifically provided in the foregoing documents delivered or made available to the Kaneb Entities or except as provided on Section 4.2(m)(ii) of the VLI Disclosure Schedule, there are no amendments to any IVAX Benefit VLI Plan that have been adopted or approved nor has any VLI Entity or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new VLI Plan.
(iii) Section 4.2(m)(iii) of the VLI Disclosure Schedule identifies each VLI Plan that is intended to be a "qualified under plan" within the meaning of Section 401(a) of the CodeCode ("VLI QUALIFIED PLANS"). The Internal Revenue Service has issued a favorable determination letter with respect to each VLI Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any VLI Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service's Employee Plans Compliance Resolution System (Revenue Procedure 2003-44) without material liability. No VLI Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of VLI Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any VLI Plan, for any period through the date of this Agreement have been timely made or, to the extent not required to be made or have been reflected paid on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to before the date of this Agreement, have been fully reflected on the financial statements. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Each VLI Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA is either (A) funded through an insurance company contract and is not a "welfare benefit fund" with the meaning of Section 419 of the Code or (B) unfunded.
(v) With respect to each VLI Plan that is subject to United States Law Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (an "IVAX Foreign Benefit Plan"):
A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such VLI Plan equals or exceeds the actuarial present value of all accrued benefits under such VLI Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign Benefit Plansuch plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as consummation of the Effective Time, 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 IVAX Foreign Benefit Plan and no transaction transactions contemplated by this Agreement shall cause will not result in the occurrence of any such assets reportable event; (D) all premiums to the PBGC have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or insurance obligations is expected to be less than such benefit obligations; and
(iii) each IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor incurred by any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX VLI Entity or any IVAX Subsidiary of its Subsidiaries; and no collective bargaining agreement is being negotiated by IVAX or (F) the PBGC has not instituted proceedings to terminate any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending orsuch VLI Plan and, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As Knowledge of the date VLI Entities, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of this AgreementERISA for the termination of, or the appointment of a trustee to the knowledge of IVAX, none of IVAXadminister, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse EffectVLI Plan.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Samples: Merger Agreement (Valero L P)
Employee Benefit Plans; Labor Matters. (a) With Section 5.17(a) of the Company Disclosure Schedule lists each material Employee Plan, including any (i) Employment Agreement with a Service Provider (other than Employment Agreements terminable at-will without the payment of severance or provision of prior notice) and (ii) any Employee Plan providing any severance, retention or change in control benefits or payments. The Company has made available to Parent with respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Employee Plan required to be listed on Section 3(35.17(a) of the Employee Retirement Income Security Act of 1974Company Disclosure Schedule, as amended ("ERISA")A) maintained a copy thereof (or contributed to by IVAX or any IVAX Subsidiarya description, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069if such plan is not written) and all amendments thereto, 4212(c(B) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX has delivered or made available to Bergen a true and correct copy of (i) such IVAX Benefit Plan and the most recent summary plan description and summary of material modifications thereto, (C) the most recently filed IRS Form 5500 and accompanying schedules and attachments thereto for each Employee Plan required to file IRS Forms 5500, (D) the most recently prepared actuarial reports and financial statements, if applicable, (E) all material, non-routine correspondence relating thereto received from or provided to the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Authority during the past three years related to such Employee Plan, (F) all current employee handbooks, (G) all material, non-routine correspondence with any Company Employee regarding any Employee Plan, and (H) the most recent IRS determination, notification, or opinion letter, if any, received with respect to any applicable Employee Plan.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, to the Knowledge of the Company, no current Company Employee or Independent Contractor is a party to, or is otherwise bound in any way by, any Contract that would reasonably be expected to interfere with the performance of such Person’s duties to the Company or its Subsidiaries.
(c) The Company has made available to Parent a true and complete list in all material respects that sets forth, as of January 17, 2022: (i) for each IVAX Benefit Plan for which a summary plan description Company Employee, such Company Employee’s name (to the extent permitted by applicable Law), employee identification number, employer, job title, hire date, work location, current base salary or wage or commission rate, annual target bonus opportunity, fringe benefits (other than those available to all similarly-situated Company Employees), whether part-time or full-time, status as exempt or non-exempt under the Fair Labor Standards Act, immigration status, and whether such individual is requiredin active employment or on leave, and if on leave, the nature of such leave and the current date of expected return; and (ii) each trust agreement current Independent Contractor, including each such Person’s name, location, and consulting or other funding arrangement relating contracting fee.
(d) Neither the Company nor any of its ERISA Affiliates sponsors, maintains, administers or contributes to such IVAX Benefit Plan, (or has any obligation to contribute to) or has any direct or indirect liability with respect to: (i) a “defined benefit plan” (as defined in Section 3(35) of ERISA); (ii) a “multiemployer plan” (as defined in Sections 4001(a)(3) and 3(37)(A) of ERISA); (iii) a pension plan subject to Section 302 or Title IV of ERISA or Section 412 or 4971 of the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), Code; (iv) the most recent actuarial report a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA or financial statement relating to an IVAX Benefit Plan and applicable state Law); or (v) a “multiple employer plan” (as defined in Section 413(c) of the most recent determination letter issued by the IRS with respect Code).
(e) Each Employee Plan that is intended to any IVAX Benefit Plan be qualified under Section 401(a) of the CodeCode (i) is so qualified, and no event has occurred since the date of such determination that would reasonably be expected to result in the loss of such qualification and (ii) is subject to a currently effective determination letter, or opinion letter on which the Company or applicable Subsidiary that is the plan sponsor is entitled to rely, from the IRS.
(bf) Each IVAX Benefit Employee Plan and each Non-United States Employee Plan has been established, maintained, funded and administered in all material respects in compliance with its terms and with all applicable Law, including ERISA and the Code. Except as would not, individually or in the aggregate, result in material liability to the Company and its Subsidiaries, (i) no Action (other than routine claims for benefits) is pending against or, to the Company’s Knowledge, is threatened against any Employee Plan, (ii) all returns, reports and disclosure statements required to be made under ERISA and the Code with respect to all Employee Plans have been timely filed or delivered, and (iii) neither the Company nor any of its ERISA Affiliates nor, to the Knowledge of the Company, any of their directors, officers, employees or agents, nor any fiduciary, trustee or administrator of any Employee Plan or trust created under any Employee Plan, has engaged in or been a party to any “prohibited transaction” as defined in Section 4975 of the Code and Section 406 of ERISA.
(g) With respect to each Non-United States Employee Plan, the Company has timely made all required contributions in all material respects in accordance with its terms applicable Law and all contributions required has no actual or contingent material liability to any such Plans that have not been satisfied in full or properly accrued.
(h) No asset of any Employee Plan intended to be made qualified under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b401(a) of the IVAX Disclosure Schedule, with respect to Code consists of Company securities (within the IVAX Benefit Plans, no event has occurred and, to the knowledge meaning of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c407(d)(1) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):ERISA).
(i) all employer No Employee Plan provides or promises, and employee contributions neither the Company nor any of its Subsidiaries have promised to each IVAX Foreign Benefit Plan provide in the future, any post-employment health, medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any current or former Service Provider (other than (i) as required by Law applicable Law, (ii) coverage through the end of the month of employment termination in accordance with the terms of the Employee Plan or (iii) under an Employment Agreement with respect to continued healthcare coverage at Company expenses).
(j) All contributions, premiums and payments that are due have been made in all material respects for each Employee Plan within the time periods prescribed by the terms of such IVAX Foreign Benefit Plan have been made orplan and applicable Law, if applicableand all contributions, premiums and payments for any period that are not yet due are properly accrued in accordance to the extent required to be accrued under GAAP.
(k) Except as expressly required under this Agreement or as set forth on Section 5.17(k) of the Company Disclosure Schedule, or as required by applicable Law, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby (either alone or together with normal accounting practices;
any other event) will (i) entitle any current or former Service Provider to any compensatory payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the fair market value time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the assets of each funded IVAX Foreign Benefit amount payable or trigger any other obligation under, any Employee Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, Parent or any of its Affiliates, to merge, amend or terminate any Employee Plan required or (iv) result in the payment of any amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the Code (without regard to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiessubsection (b)(4) thereof).
(dl) Except as set forth in Each Employee Plan which is a “nonqualified deferred compensation plan” subject to Section 3.09(d) 409A of the IVAX Disclosure Schedule, neither IVAX Code has been established and operated in compliance with Section 409A of the Code in all material respects. Neither the Company nor any IVAX Subsidiary is of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former Service Provider for any Tax incurred by such Service Provider, including under Section 409A or Section 4999 of the Code.
(m) Neither the Company nor any of its Subsidiaries is, nor has it been since January 1, 2019, a party to or subject to, or is currently negotiating in connection with entering into, any Collective Bargaining Agreement, and there is no, and, since January 1, 2019, there has not been any, material organizational campaign, petition or other unionization activity pending, or to the Knowledge of the Company, threatened, seeking recognition of a collective bargaining or other labor union contract applicable unit relating to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. Company Employee.
(n) As of the date of this Agreementhereof, there is are no material unfair labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary practice complaints pending or, to the knowledge Knowledge of IVAXthe Company, threatened which may interfere with against the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, Company or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by its Subsidiaries before the National Labor Relations Board or any comparable governmental agency other Governmental Authority. There is no, and since January 1, 2019, there has not been, any labor strike, slowdown, stoppage, picketing, material interruption of work or lockout pending against the Company or threatened in writingany of its Subsidiaries, except where nor, to the Knowledge of the Company, is any such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effectaction threatened.
(eo) IVAX has delivered The Company and its Subsidiaries are in compliance with all applicable Laws relating to Bergen true labor and complete copies of employment in all material respects, including (i) all employment agreements with officers those relating to labor management relations, wages, hours, overtime, employee classification, equal opportunity, discrimination, sexual harassment, disability accommodation, protected leave, civil rights, affirmative action, work authorization, immigration, safety and health, information privacy and security, wage payment, the payment and withholding of IVAX Taxes and each IVAX Subsidiary providing for annual workers compensation in excess of $250,000, and (ii) all severance plansthe Worker Adjustment and Retraining Notification Act and any comparable foreign, agreementsstate or local law. Neither the Company nor any of its Subsidiaries is, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employeessince January 1, and (iii) all plans2020, programshas been, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisionsa government contractor.
(fp) Except as provided To the Company’s Knowledge, in Section 3.09(fthe last three (3) years ending on the date hereof, (i) there has been no allegation of sexual harassment made against any former or current executive officer of the IVAX Disclosure Schedule Company or as otherwise required any of its Subsidiaries and (ii) the Company and its Subsidiaries have not entered into any settlement agreements related to allegations of sexual harassment by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any persona Service Provider.
Appears in 1 contract
Samples: Merger Agreement (Zogenix, Inc.)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX VG or any IVAX VG Subsidiary, or with respect to which IVAX VG or any IVAX VG Subsidiary could incur liability under Section Sections 4069, 4212(c) or 4204 of ERISA (the "IVAX VG Benefit Plans"), IVAX VG has delivered or made available to Bergen LESUS a true and correct copy of (i) such IVAX VG Benefit Plan and the most recent summary plan description related to each IVAX VG Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX VG Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS")) with respect to such VG Benefit Plan, (iv) the most recent actuarial report or financial statement relating to an IVAX such VG Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX each such VG Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX VG Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX VG Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreementmade. Except as set forth in Section 3.09(b) of the IVAX VG Disclosure Schedule, with respect to the IVAX VG Benefit Plans, no event has occurred and, to the knowledge of IVAXVG, there exists no condition or set of circumstances in connection with which IVAX VG or any IVAX VG Subsidiary could is reasonably likely to be subject to any liability under the terms of such IVAX VG Benefit Plans, ERISA, the Code or any other applicable Law which that would individually or in the aggregate have an IVAX a VG Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX VG Disclosure Schedule, neither IVAX VG nor any IVAX VG Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX VG or any IVAX VG Subsidiary and no collective bargaining agreement is being negotiated by IVAX VG or any IVAX VG Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX VG or any IVAX VG Subsidiary pending or, to the knowledge of IVAXVG, threatened which may interfere with the respective business activities of IVAX VG or any IVAX VG Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAXVG, none of IVAXVG, any IVAX VG Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX VG or any IVAX VG Subsidiary, and there is no charge or complaint against IVAX VG or any IVAX VG Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effectthreatened.
(ed) IVAX VG has delivered or made available to Bergen LESUS true and complete copies of (i) all employment agreements with officers of IVAX VG and each IVAX VG Subsidiary providing for annual compensation in excess of $250,000100,000, (ii) all severance plans, agreements, programs and policies of IVAX VG and each IVAX VG Subsidiary with or relating to their respective employees, employees and (iii) all plans, programs, agreements and other arrangements of IVAX VG and each IVAX VG Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(fe) Except as provided in Section 3.09(f3.09(e) of the IVAX VG Disclosure Schedule or as otherwise required by Law, no IVAX VG Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Samples: Merger Agreement (Virogroup Inc)
Employee Benefit Plans; Labor Matters. (a) With respect to each Each employee benefit plan, programprogram and arrangement, arrangement and each employment, termination, severance or other employee benefit contract (includingor agreement, without limitationwith respect to which Interstate, any "employee benefit plan", of the Interstate Subsidiaries or any other entity that is treated as defined in a single employer with Interstate or any of the Interstate Subsidiaries under Section 3(3) 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 414 of the Code (each, a "INTERSTATE ERISA GROUP MEMBER") maintained has any obligation or which are maintained, contributed to or sponsored by IVAX a Interstate ERISA Group Member for the benefit of any current or any IVAX Subsidiaryformer employee, officer or with respect director of a Interstate ERISA Group Member under which plan, program, arrangement, contract or agreement total payments of more than $25,000 may be required to which IVAX or any IVAX Subsidiary could incur liability under Section 4069be made by a Interstate ERISA Group Member (collectively, 4212(c) or 4204 of ERISA (the "IVAX Benefit PlansINTERSTATE BENEFIT PLANS")) are listed on Section 3.10(a) of the Interstate Disclosure Letter. Except for those matters listed on Section 3.10(a) of the Interstate Disclosure Letter and such matters as, IVAX has delivered individually or made available in the aggregate, have not and could not reasonably be expected to Bergen result in a true and correct copy of Material Adverse Effect on Interstate:
(i) such IVAX each Interstate Benefit Plan and any related trust intended to be qualified under Sections 401(a) and 501(a) of the most recent summary plan description related to each IVAX Benefit Plan for which Code has received a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with favorable determination letter from the Internal Revenue Service (the "IRS")) that it is so qualified, and to the knowledge of Interstate, nothing has occurred since the date of such letter that could materially adversely affect the qualified status of such Interstate Benefit Plan or related trust;
(ii) each Interstate Benefit Plan has been operated in accordance with its terms and the requirements of ERISA, the Code and other applicable Law, and all reporting, filing and disclosure obligations imposed under ERISA, the Code and other applicable Law have been satisfied with respect to each Interstate Benefit Plan;
(iii) no Interstate ERISA Group Member has incurred any direct or indirect liability arising out of a violation of Title I of ERISA or comparable provisions of the Code, or under, arising out of or by operation of Title IV of ERISA or comparable provisions of the Code, in connection with any Interstate Benefit Plan or other retirement plan or arrangement, and to the knowledge of Interstate, no fact or event exists that could reasonably be expected to give rise to any such liability;
(iv) all contributions and/or insurance premium payments due and payable on or before the most recent actuarial report or financial statement relating to an IVAX date hereof in respect of each Interstate Benefit Plan have been made in full and in proper form;
(v) no Interstate ERISA Group Member has ever sponsored or been obligated to contribute to any "multiemployer plan" (as defined in Sections 3(37) and 4001(a)(3) of ERISA), "multiple employer plan" (as defined in Section 210 of ERISA and Section 413 of the most recent determination letter issued Code) or "defined benefit plan" (as defined in Section 3(35) of ERISA);
(vi) no Interstate ERISA Group Member would incur withdrawal liability (within the meaning of Part 1 of Subtitle E of Title I of ERISA) if it withdrew (within the meaning of Part 1 of Subtitle E of Title I of ERISA) from each Interstate Benefit Plan that is a "multiemployer plan" (as defined in Sections 3(37) and 4001(a)(3) of ERISA);
(vii) no Interstate Benefit Plan has or has incurred an accumulated funding deficiency within the meaning of Section 302 of ERISA and Section 412 of the Code, nor has any waiver of the minimum funding standards of Section 302 of ERISA and Section 412 of the Code been requested of or granted by the IRS with respect to any IVAX Interstate Benefit Plan, nor has any lien in favor of any Interstate Benefit Plan qualified arisen under Section 401(a412(n) of the Code or Section 302(f) of ERISA;
(viii) except as otherwise required under ERISA, the Code and other applicable Law, no Interstate Benefit Plan currently or previously maintained by Interstate or any of the Interstate Subsidiaries provides any post-retirement health or life insurance benefits in the future;
(ix) no Interstate Benefit Plan is or at any time was funded through a "welfare benefit fund" (as defined in Section 419(e) of the Code), and no benefits under any Interstate Benefit Plan are or at any time have been provided through a voluntary employees' beneficiary association (within the meaning of Section 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code);
(x) with respect to any insurance policy providing funding for benefits under any Interstate Benefit Plan, there is no liability of Interstate or any of the Interstate Subsidiaries in the nature of a retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability, nor would there be any such liability if such insurance policy was terminated on the date hereof;
(xi) there is no pending or, to the knowledge of Interstate, threatened litigation, assessment, complaint, proceeding or investigation of any kind in any court or from any Governmental Entity or other person with respect to any Interstate Benefit Plan (other than routine claims for benefits), nor is there, to the knowledge of Interstate, any basis for one;
(xii) the disallowance of a deduction under Section 162(m) of the Code for employee remuneration will not apply to any amount paid or payable by Interstate or any of the Interstate Subsidiaries under any Interstate Benefit Plan; and
(xiii) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in the payment of separation, severance, termination, "golden parachute" or similar-type benefits to any person, (B) increase any benefits otherwise payable under any Interstate Benefit Plan or otherwise, (C) result in any acceleration of the time of payment or vesting of any benefits, (D) trigger a requirement for funding or the acceleration of funding of any benefits or (E) commence a period during which a subsequent termination of employment by an employee of Interstate or any Interstate Subsidiary will entitle such employee to benefits in excess of what would otherwise have been required in the absence of the transactions contemplated hereby.
(b) Each IVAX Interstate has made available to MeriStar a complete and accurate copy of each Interstate Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made (or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference a written summary in the IVAX Reports prior to the date case of this Agreement. Except as set forth in Section 3.09(ban unwritten Interstate Benefit Plan) and a complete and accurate copy of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances each material document prepared in connection with which IVAX each such Interstate Benefit Plan, including without limitation, a copy of (i) each trust or any IVAX Subsidiary could be subject to any liability under other funding arrangement, if any, (ii) each summary plan description and summary of material modifications, if any, (iii) the terms of such IVAX Benefit Plansmost recently filed IRS Form 5500, ERISAif any, (iv) the Code or any other applicable Law which would individually or in most recently received IRS determination letter, if any, and (v) the aggregate have an IVAX Material Adverse Effectmost recently prepared actuarial report and financial statement, if any.
(c) Except as set forth in Section 3.09(c3.10(c) of the IVAX Interstate Disclosure Schedule or except as would not have an IVAX Material Adverse EffectLetter, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer there are no leased employees within the meaning of Section 414(n) of the Code who perform services for any Interstate ERISA Group Member and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market value neither Interstate nor any of the assets Interstate Subsidiaries is a party to, or is bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or other labor union organization. Interstate has made available true, correct and complete copies of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient all such agreements to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) MeriStar. Except as set forth in Section 3.09(d3.10(c) of the IVAX Interstate Disclosure ScheduleLetter and except as individually or in the aggregate, neither IVAX nor any IVAX Subsidiary is has not resulted and could not reasonably be expected to result, in a party to any Material Adverse Effect on Interstate, (A) currently there are no organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining or other labor union contract applicable to persons employed by IVAX unit which could affect Interstate or any IVAX Subsidiary and Interstate Subsidiary; (B) there are no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreementcontroversies, there is no labor disputestrikes, strike slowdowns or work stoppage against IVAX or any IVAX Subsidiary stoppages pending or, to the knowledge of IVAXInterstate, after due inquiry, threatened which may interfere with the respective business activities of IVAX between Interstate or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or Interstate Subsidiaries and any of their respective representatives employees, and neither Interstate nor any of the Interstate Subsidiaries has experienced any such controversy, strike, slowdown or employees work stoppage within the past three years; (C) neither Interstate nor any of the Interstate Subsidiaries has committed breached or otherwise failed to comply with the provisions of any collective bargaining or union contract and there are no grievances outstanding against Interstate or any Interstate Subsidiary under any such agreement or contract; and (D) there are no unfair labor practice in connection with the operation complaints pending against Interstate or any of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by Interstate Subsidiaries before the National Labor Relations Board or any comparable governmental agency pending other Governmental Entity or threatened in writing, except where such unfair labor practice, charge any current union representation questions involving employees of Interstate or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) any of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any personInterstate Subsidiaries.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX CGI or any IVAX CGI Subsidiary, or with respect to which IVAX CGI or any IVAX CGI Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX CGI Benefit Plans"), IVAX CGI has delivered or made available to Bergen STC a true true, complete and correct copy of (i) such IVAX CGI Benefit Plan and the most recent summary plan description related to each IVAX such CGI Benefit Plan for which Plan, if a summary plan description is requiredrequired therefor, (ii) each trust agreement or other funding arrangement relating to such IVAX CGI Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS")IRS with respect to such CGI Benefit Plan, (iv) the most recent actuarial report or financial statement relating to an IVAX such CGI Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX such CGI Benefit Plan Plan, if it is qualified under Section 401(a) of the Code.
(b) Each IVAX CGI Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX CGI Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX CGI Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b5.09(b) of the IVAX CGI Disclosure Schedule, with respect to the IVAX CGI Benefit Plans, no event has occurred and, to the knowledge of IVAXCGI, there exists no condition or set of circumstances in connection with which IVAX CGI or any IVAX CGI Subsidiary could be subject to any liability under the terms of such IVAX CGI Benefit Plans, ERISA, the Code or any other applicable Law which would could reasonably be expected to have, individually or in the aggregate have an IVAX aggregate, a CGI Material Adverse Effect.
(c) Except as set forth in Section 3.09(c5.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX CGI Disclosure Schedule, neither IVAX CGI nor any IVAX CGI Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.21
(ed) IVAX CGI has delivered to Bergen true STC true, complete and complete correct copies of (i) all employment agreements with officers of IVAX CGI and each IVAX CGI Subsidiary providing for annual compensation in excess of $250,00025,000, (iib) all severance plans, agreements, programs and policies of IVAX CGI and each IVAX CGI Subsidiary with or relating to their respective employees, employees and (iii) all plans, programs, agreements and other arrangements of IVAX CGI and each IVAX CGI Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(fe) Except as provided in Section 3.09(f5.09(e) of the IVAX CGI Disclosure Schedule or as otherwise required by Law, no IVAX CGI Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Cell Genesys Inc)
Employee Benefit Plans; Labor Matters. (a) With Except as set forth in Section 2.11(a) of the BOP Disclosure Schedule with respect to each employee benefit plan, program, policy, arrangement and contract (including, without limitation, any "employee benefit plan", ," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) , maintained or contributed to at any time by IVAX BOP or any IVAX Subsidiaryentity required to be aggregated with BOP pursuant to Section 414 of the Code (each, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the a "IVAX Benefit PlansBOP Employee Plan"), IVAX no event has delivered occurred and to the knowledge of BOP, no condition or made available set of circumstances exists in connection with which BOP could reasonably be expected to Bergen be subject to any liability which would have a true and correct copy of Material Adverse Effect on BOP.
(i) such IVAX Benefit No BOP Employee Plan is or has been subject to Title IV of ERISA or Section 412 of the Code; and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating BOP Employee Plan intended to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified qualify under Section 401(a) of the CodeCode and each trust intended to qualify under Section 501(a) of the Code is the subject of a favorable Internal Revenue Service determination letter, and nothing has occurred which could reasonably be expected to adversely affect such determination.
(bc) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any Section 2.11(c) of the IVAX Benefit Plans BOP Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement have been timely made Agreement, of each person who holds any BOP BOP also warrants that there are no outstanding options or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior warrants, with regards to the date BOP Stock and there are none contemplated hereby.
(d) BOP warrants that BOP does not have any employment and compensation arrangements for any its officers all of this Agreement. Except as which are set forth in Section 3.09(b2.11 (d) of the IVAX BOP Disclosure Schedule.
(e) There shall be no payment, accrual of additional benefits, acceleration of payments, or vesting in any benefit under any BOP Employee Plan or any agreement or arrangement disclosed under this Section 2.11 solely by reason of entering into or in connection with respect to the IVAX Benefit Plans, transactions contemplated by this Agreement.
(f) There are no event has occurred andcontroversies pending or, to the knowledge of IVAXBOP, there exists no condition threatened, between BOP and any of their employees, which controversies have or set of circumstances in connection with which IVAX or any IVAX Subsidiary could reasonably be subject expected to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX a Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX Effect on BOP. Neither BOP nor any IVAX Subsidiary of its subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by IVAX BOP or any IVAX Subsidiary of its subsidiaries (and no neither BOP nor any of its subsidiaries has any outstanding material liability with respect to any terminated collective bargaining agreement is being negotiated by IVAX or labor union contract), nor does BOP know of any IVAX Subsidiaryactivities or proceedings of any labor union to organize any of its or employees. As of the date of this Agreement, there is BOP has no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAXany strike, threatened which may interfere slowdown, work stoppage, lockout or threat thereof, by or with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, respect to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effectits employees.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to Section 3.9(a) of the Company Disclosure Schedule sets forth a true and complete list as of the date hereof of each material employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained ), maintained, or contributed to to, by IVAX the Company or any IVAX Company Subsidiary, or with respect to which IVAX the Company or any IVAX Company Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA is required to contribute (the "IVAX Company Benefit Plans"). With respect to each Company Benefit Plan, IVAX the Company has heretofore delivered or made available to Bergen Parent a true true, correct and correct complete copy of: (1) each writing constituting a part of such Company Benefit Plan, including without limitation all plan documents, trust agreements, and insurance contracts and other funding vehicles; (i2) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (3) the current summary plan description related and any material modifications thereto, if any (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii4) the most recent annual report financial report, if any; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv5) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report, if any; and (v6) the most recent determination letter issued by from the IRS with respect IRS, if any. Except as specifically provided in the foregoing documents delivered to Parent, there are no amendments to any IVAX Company Benefit Plan qualified under Section 401(a) of that have been adopted or approved nor has the CodeCompany or any Company Subsidiary undertaken to make any such amendments or to adopt or approve any new Plan.
(b) Each IVAX With respect to each Company Benefit Plan which is subject to Title IV of ERISA, or Section 302 of ERISA or Section 412 or 4971 of the Code (1) the present value of accrued benefits under such Company Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Company Benefit Plan's actuary with respect to such Company Benefit Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Company Benefit Plan allocable to such accrued benefits, (2) no "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Company Benefit Plan for which the 30-day notice requirement has not been waived, (3) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (4) all premiums to the Pension Benefit Guaranty Corporation ("PBGC") have been timely paid in full, (5) except as set forth in Section 3.9(b) of the Company Disclosure Schedule, no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company or any of its subsidiaries, and (6) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan and, to the Company's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Benefit Plan. No Company Benefit Plan is a "multiemployer pension plan" (as such term is defined in section 3(37) of ERISA) (a "Multiemployer Plan") or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "Multiple Employer Plan"). Neither the Company nor any Company Subsidiaries nor any of their respective ERISA Affiliates (as defined below) has (1) at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan, or (2) incurred any withdrawal liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan that has not been satisfied in full. Except as set forth in Section 3.9(b) of the Company Disclosure Schedule, there does not now exist, nor, to the knowledge of the Company, do any circumstances exist that could result in, any liability that would be a liability of the Company or any of the Company Subsidiaries following the Closing (1) under Title IV of ERISA, (2) under section 302 of ERISA, (3) under sections 412 and 4971 of the Code, or (4) as a result of a failure to comply with the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, other than such liabilities that arise solely out of, or relate solely to, the Company Benefit Plans.
(c) Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with its terms applicable Laws and all contributions required administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, except where a violation of any such Law, rule or regulation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each of the Company Benefit Plans intended to be made under "qualified" within the terms meaning of Section 401(a) of the Code has received a favorable determination letter as to such qualification from the IRS, and no event has occurred, either by reason of any action or failure to act, which would cause the loss of the IVAX Benefit Plans as of the date of this Agreement have been timely made any such qualification, except where such action or have been reflected on the most recent consolidated balance sheet filed failure to act can be cured without having, individually or incorporated by reference in the IVAX Reports prior to the date of this Agreementaggregate, a Company Material Adverse Effect. Except as set forth in Section 3.09(b3.9(c) of the IVAX Company Disclosure Schedule, no Company Benefit Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees of the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX Company or any IVAX Company Subsidiary could be subject to beyond their retirement or other termination of service, other than (1) coverage mandated by applicable Law, (2) death benefits or retirement benefits under any liability under "employee pension plan" (as such term is defined in Section 3(2) of ERISA), (3) deferred compensation benefits accrued as liabilities on the terms books of such IVAX Benefit Plans, ERISA, the Code Company or any Company Subsidiary or (4) benefits the full cost of which is borne by the current or former employee (or his beneficiary). All contributions or other applicable Law which would individually amounts payable by the Company or in the aggregate have an IVAX Material Adverse Effect.
(c) Except any Company Subsidiary as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, Effective Time with respect to each IVAX Company Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law in respect of current or by the terms of such IVAX Foreign Benefit Plan prior plan years will have been made or, if applicable, paid or accrued by such time in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiesGAAP.
(d) Except as set forth in Section 3.09(d3.9(d) of the IVAX Company Disclosure Schedule, neither IVAX the Company nor any IVAX Company Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX the Company or any IVAX Subsidiary Company Subsidiary, and no collective bargaining agreement or other labor union contract is being negotiated by IVAX the Company or any IVAX Company Subsidiary. As of the date of this Agreement, there There is no labor dispute, strike strike, slowdown or work stoppage against IVAX the Company or any IVAX Company Subsidiary pending or, to the knowledge of IVAXthe Company, threatened which may interfere in any respect that would have a Company Material Adverse Effect with the respective business activities of IVAX the Company or any IVAX Company Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to To the knowledge of IVAXthe Company, none of IVAXthe Company, any IVAX Subsidiary, Company Subsidiary or any of their respective representatives or employees has committed any unfair labor practice practices in connection with the operation of the respective businesses of IVAX the Company or any IVAX Company Subsidiary, and there is no charge or complaint against IVAX the Company or any IVAX Company Subsidiary by the National Labor Relations Board or any comparable governmental state or foreign agency pending or threatened in writingor, to the knowledge of the Company, threatened, except where such unfair labor practice, charge or complaint would not not, individually or in the aggregate, reasonably be expected to have an IVAX a Company Material Adverse Effect.
(e) IVAX The Company has delivered identified in Section 3.9(e) of the Company Disclosure Schedule and has made available to Bergen Parent true and complete copies of (i1) all severance and employment agreements with officers directors, executive officers, key employees or consultants of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, the Company; (ii2) all severance plans, agreements, programs and policies of IVAX each of the Company and each IVAX Company Subsidiary with or relating to their respective its employees, ; and (iii3) all plans, programs, agreements and other arrangements of IVAX each of the Company and each IVAX Company Subsidiary with or relating to their respective its employees which contain "change of control" in control provisions.
(f) . Except as provided set forth in Section 3.09(f3.9(e) of the IVAX Company 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 other event, such as termination of employment) (A) result in any material payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any director or any employee of the Company or any Company Subsidiary or affiliate from the Company or any Company Subsidiary or affiliate under any Company Benefit Plan or otherwise, (B) materially increase any benefits otherwise payable under any Company Benefit Plan or (C) result in any acceleration of the time of payment or vesting of any material benefits. No individual who is a party to an employment agreement listed in Section 3.9 (a) of the Disclosure Schedule or as otherwise required by Lawany change-of- control employment agreement with the Company has terminated employment or been terminated, no IVAX Benefit Plan provides retiree medical nor has any event occurred that could give rise to a termination event, in either case under circumstances that has given, or retiree life insurance benefits could give, rise to any persona severance obligation on the part of the Company under such agreement.
Appears in 1 contract
Samples: Merger Agreement (Motorola Inc)
Employee Benefit Plans; Labor Matters. (a) With respect to The Professionals Group Disclosure Schedule sets forth a true and complete list of each material employee benefit plan, programarrangement or agreement that is maintained as of the date of this Agreement (the "Professionals Group Benefit Plans") by Professionals Group or any of its Subsidiaries or by any affiliated trade or business, arrangement and contract whether or not incorporated (includingan "ERISA Affiliate"), without limitation, any all of which together with Professionals Group would be deemed a "employee benefit plan", as defined in single employer" within the meaning of Section 3(3) 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
(b) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX Professionals Group has heretofore delivered or made available to Bergen a PPTF true and correct copy complete copies of each of the Professionals Group Benefit Plans and certain related documents, including (i) the actuarial report for such IVAX Professionals Group Benefit Plan (if applicable) for each of the last two years, and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by from the IRS with respect to any IVAX (if applicable) for such Professionals Group Benefit Plan qualified under Section 401(a) of the CodePlan.
(bi) Each IVAX of the Professionals Group Benefit Plan Plans has been operated and administered in all material respects in accordance compliance with its terms applicable laws, including, but not limited to, ERISA and all contributions required the Code, (ii) each of the Professionals Group Benefit Plans intended to be made under "qualified" within the terms meaning of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b401(a) of the IVAX Disclosure Schedule, with respect to Code has received a determination letter from the IVAX Benefit Plans, IRS that it is so qualified and no event has occurred andthat will or is likely to give rise to disqualification of any such plan or trust created thereunder, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(ciii) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Professionals Group Benefit Plan that which is not subject to United States Law (an "IVAX Foreign Title IV of ERISA, the present value of accrued benefits under such Professionals Group Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign , based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by the actuary for such Professionals Group Benefit Plan required by Law or by with respect to such Professionals Group Benefit Plan, did not, as of its latest valuation date, exceed the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market then current value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign such Professionals Group Benefit Plan funded through insurance allocable to such accrued benefits, (iv) no Professionals Group Benefit Plan provides benefits, including death or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure medical benefits (whether or provide for the accrued benefit obligations, as of the Effective Timenot insured), with respect to all current and or former participants in employees of Professionals Group, its Subsidiaries or any ERISA Affiliate beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law, (B) death benefits or retirement benefits under any "employee pension plan" (as such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth term is defined in Section 3.09(d3(2) of ERISA), (C) deferred compensation benefits accrued as liabilities on the IVAX books of Professionals Group, its Subsidiaries or the ERISA Affiliates, (D) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary), or (E) disability or severance plans identified on the Professionals Group Disclosure Schedule, (v) no material liability under Title IV of ERISA has been incurred by Professionals Group, its Subsidiaries or any ERISA Affiliate (other than liability for premiums to the Pension Benefit Guaranty Corporation (the "PBGC") arising in the ordinary course) that has not been satisfied in full, and no condition exists that presents a material risk to Professionals Group, its Subsidiaries or any ERISA Affiliate of incurring a material liability thereunder, (vi) no Professionals Group Benefit Plan is a "multiemployer pension plan" (as such term is defined in Section 3(37) of ERISA), (vii) all required contributions or other amounts payable by Professionals Group or its Subsidiaries as of the INSCX Xxxective Time with respect to each Professionals Group Benefit Plan in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP and Section 412 of the Code, (viii) to the best knowledge of Professionals Group neither IVAX Professionals Group, its Subsidiaries nor any IVAX Subsidiary is ERISA Affiliate has engaged in a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice transaction in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.which
Appears in 1 contract
Samples: Agreement and Plan of Merger (Professionals Insurance Co Management Group)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX CGI or any IVAX CGI Subsidiary, or with respect to which IVAX CGI or any IVAX CGI Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX CGI Benefit Plans"), IVAX CGI has delivered or made available to Bergen STC a true true, complete and correct copy of (i) such IVAX CGI Benefit Plan and the most recent summary plan description related to each IVAX such CGI Benefit Plan for which Plan, if a summary plan description is requiredrequired therefor, (ii) each trust agreement or other funding arrangement relating to such IVAX CGI Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS")IRS with respect to such CGI Benefit Plan, (iv) the most recent actuarial report or financial statement relating to an IVAX such CGI Benefit Plan and (v) the most recent determination letter issued by the IRS with respect to any IVAX such CGI Benefit Plan Plan, if it is qualified under Section 401(a) of the Code.
(b) Each IVAX CGI Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the IVAX CGI Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX CGI Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b5.09(b) of the IVAX CGI Disclosure Schedule, with respect to the IVAX CGI Benefit Plans, no event has occurred and, to the knowledge of IVAXCGI, there exists no condition or set of circumstances in connection with which IVAX CGI or any IVAX CGI Subsidiary could be subject to any liability under the terms of such IVAX CGI Benefit Plans, ERISA, the Code or any other applicable Law which would could reasonably be expected to have, individually or in the aggregate have an IVAX aggregate, a CGI Material Adverse Effect.
(c) Except as set forth in Section 3.09(c5.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX CGI Disclosure Schedule, neither IVAX CGI nor any IVAX CGI Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.employed
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Somatix Therapy Corporation)
Employee Benefit Plans; Labor Matters. (a) With respect to The Professionals Group Disclosure Schedule sets forth a true and complete list of each material employee benefit plan, programarrangement or agreement that is maintained as of the date of this Agreement (the "Professionals Group Benefit Plans") by Professionals Group or any of its Subsidiaries or by any affiliated trade or business, arrangement and contract whether or not incorporated (includingan "ERISA Affiliate"), without limitation, any all of which together with Professionals Group would be deemed a "employee benefit plan", as defined in single employer" within the meaning of Section 3(3) 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
(b) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX Professionals Group has heretofore delivered or made available to Bergen a PPTF true and correct copy complete copies of each of the Professionals Group Benefit Plans and certain related documents, including (i) the actuarial report for such IVAX Professionals Group Benefit Plan (if applicable) for each of the last two years, and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by from the IRS with respect to any IVAX (if applicable) for such Professionals Group Benefit Plan qualified under Section 401(a) of the CodePlan.
(bi) Each IVAX of the Professionals Group Benefit Plan Plans has been operated and administered in all material respects in accordance compliance with its terms applicable laws, including, but not limited to, ERISA and all contributions required the Code, (ii) each of the Professionals Group Benefit Plans intended to be made under "qualified" within the terms meaning of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b401(a) of the IVAX Disclosure Schedule, with respect to Code has received a determination letter from the IVAX Benefit Plans, IRS that it is so qualified and no event has occurred andthat will or is likely to give rise to disqualification of any such plan or trust created thereunder, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(ciii) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Professionals Group Benefit Plan that which is not subject to United States Law (an "IVAX Foreign Title IV of ERISA, the present value of accrued benefits under such Professionals Group Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign , based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by the actuary for such Professionals Group Benefit Plan required by Law or by with respect to such Professionals Group Benefit Plan, did not, as of its latest valuation date, exceed the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market then current value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign such Professionals Group Benefit Plan funded through insurance allocable to such accrued benefits, (iv) no Professionals Group Benefit Plan provides benefits, including death or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure medical benefits (whether or provide for the accrued benefit obligations, as of the Effective Timenot insured), with respect to all current and or former participants employees of Professionals Group, its Subsidiaries or any ERISA Affiliate beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law, (B) death benefits or retirement benefits under any "employee pension plan" (as such term is defined in such plan according Section 3(2) of ERISA), (C) deferred compensation benefits accrued as liabilities on the books of Professionals Group, its Subsidiaries or the ERISA Affiliates, (D) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary), or (E) disability or severance plans identified on the Professionals Group Disclosure Schedule, (v) no material liability under Title IV of ERISA has been incurred by Professionals Group, its Subsidiaries or any ERISA Affiliate (other than liability for premiums to the actuarial assumptions Pension Benefit Guaranty Corporation (the "PBGC") arising in the ordinary course) that has not been satisfied in full, and valuations most recently used no condition exists that presents a material risk to determine employer contributions to such IVAX Foreign Professionals Group, its Subsidiaries or any ERISA Affiliate of incurring a material liability thereunder, (vi) no Professionals Group Benefit Plan and no transaction contemplated is a "multiemployer pension plan" (as such term is defined in Section 3(37) of ERISA), (vii) all required contributions or other amounts payable by this Agreement shall cause such assets Professionals Group or insurance obligations its Subsidiaries as of the INSCX Xxxective Time with respect to be less than such benefit obligations; and
(iii) each IVAX Foreign Professionals Group Benefit Plan required in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP and Section 412 of the Code, (viii) to the best knowledge of Professionals Group neither Professionals Group, its Subsidiaries nor any ERISA Affiliate has engaged in a transaction in connection with which Professionals Group, its Subsidiaries or any ERISA Affiliate reasonably could be registered has been registered 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, and has been maintained (ix) there are no pending, or to the best knowledge of Professionals Group, threatened or anticipated claims (other than routine claims for benefits and administrative expenses payable in good standing with the appropriate regulatory authoritiesordinary course) by, on behalf of or against any of the Professionals Group Benefit Plans or any trusts related thereto which are, in the reasonable judgment of Professionals Group, likely to have a Material Adverse Effect on Professionals Group.
(d) Except as set forth in Section 3.09(d) Neither the execution and delivery of this Agreement nor the consummation of the IVAX Disclosure Scheduletransactions contemplated by this Agreement will (i) result in any material payment (including severance, neither IVAX unemployment compensation, golden parachute or otherwise) becoming due to any director or employee of Professionals Group or any of its affiliates from Professionals Group or any of its affiliates under any Professionals Group Benefit Plan or otherwise, (ii) materially increase any benefits otherwise payable under any Professionals Group Benefit Plan or (iii) result in any acceleration of the time of payment or vesting of any such benefits to any material extent.
(e) To the best knowledge of Professionals Group, Professionals Group and each Subsidiary of Professionals Group is in compliance in all material respects with all currently applicable laws and regulations respecting employment and employment matters, discrimination in employment, terms and conditions of employment, wages, hours and occupational safety and health and employment practices (including federal and state wage and hour laws, workplace safety laws, workers' compensation laws, equal employment opportunity laws, equal pay laws, civil rights laws, the Americans With Disabilities Act and the Fair Labor Standards Act of 1938, as amended), and is not engaged in any unfair labor practice. Professionals Group and each Subsidiary of Professionals Group has complied with all applicable notice provisions of and has no material obligations under COBRA with respect to any former employees or qualifying beneficiaries thereunder. There is no action, claim, cause of action, suit or proceeding pending or, to the best knowledge of Professionals Group, threatened, on the part of any employee, independent contractor or applicant for employment, including any such action, claim, cause of action, suit or proceeding based on allegations of wrongful termination or discrimination on the basis of age, race, religion, sex, sexual preference, or mental or physical handicap or disability that could, or could reasonably be expected to, have a Material Adverse Effect on Professionals Group. Neither Professionals Group nor any IVAX Subsidiary of Professionals Group is a party to any collective bargaining agreement or other labor union contract applicable nor does Professionals Group know of any activities or proceedings of any labor union to persons employed by IVAX organize any employees of Professionals Group or any IVAX Subsidiary of Professionals Group. Professionals Group and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As each Subsidiary of Professionals Group has provided all employees with all relocation benefits, stock options, bonuses and incentives, and all other compensation that such employee has earned up through the date of this AgreementAgreement or that such employee was otherwise promised in his or her employment agreement(s) with Professionals Group or the relevant Subsidiary of Professionals Group, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to as the knowledge of IVAX, threatened which case may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisionsbe.
(f) Except as disclosed in the Professionals Group Reports, all material sums due for employee compensation have been paid, accrued or otherwise provided for, and all employer contributions for employee benefits, including deferred compensation obligations, and all benefits under any Professionals Group Benefit Plan have been duly and adequately paid or provided for in accordance with plan documents. To the best knowledge of Professionals Group, no person treated as an independent contractor by Professionals Group or any Subsidiary of Professionals Group is an employee as defined in Section 3.09(f3401(c) of the IVAX Disclosure Schedule Code, nor has any employee been otherwise improperly classified, as exempt, nonexempt or as otherwise required by Lawotherwise, for purposes of federal or state income tax withholding or overtime laws, rules, or regulations. To the best knowledge of Professionals Group, no IVAX executive or key employee or group of employees of Professionals Group or any Subsidiary of Professionals Group has any plans to terminate his, her or their employment.
(g) Neither Professionals Group nor any of its Subsidiaries has any commitment to (i) create any additional plan or modify or change any existing Professionals Group Benefit Plan provides retiree medical or retiree life insurance (ii) enter into any contract to provide compensation or benefits to any personindividual.
Appears in 1 contract
Samples: Merger Agreement (Professionals Insurance Co Management Group)
Employee Benefit Plans; Labor Matters. (a) With respect to each Section 3.11(a) of the Company Disclosure Schedule lists all employee benefit plan, program, arrangement and contract plans (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained ), and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other similar fringe or contributed employee benefit plans, programs or arrangements, and any severance, consulting or retention agreements, written or otherwise, funded or unfunded, formal or informal and whether or not subject to by IVAX or any IVAX SubsidiaryERISA, for the benefit of, or relating to, any current or former employee or director of the Company, any trade or business (whether or not incorporated) which is a member of a controlled group including the Company or which is under common control with the Company (an "ERISA AFFILIATE") within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the "CODE"), as well as each plan with respect to which IVAX the Company or any IVAX Subsidiary an ERISA Affiliate could incur liability under Section 4069, 4069 (if such plan has been or were terminated) or Section 4212(c) or 4204 of ERISA (together, the "IVAX Benefit PlansEMPLOYEE PLANS"), IVAX . The Company has delivered or made available to Bergen a true Parent, if applicable, complete and correct copy accurate copies of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, three (ii3) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (reports on Form 5500) 5500 and related schedules and financial statements filed with the Internal Revenue Service (the "IRS")) for each Employee Plan, including any actuarial and auditor reports required to be filed with the annual reports; (ii) the most recent plan documents and related trust documents, adoption agreements, nondiscrimination test reports for the last three (3) years, and all amendments thereto for each Employee Plan currently proposed or final, including, in the case of any Employee Plan not set forth in writing, a written description thereof; (iii) the most recent summary plan description for each Employee Plan; (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan favorable IRS determination letter and antecedent application materials for each Employee Plan; (v) the most recent determination letter issued by the IRS with respect to any IVAX Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms funding and all contributions required to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made service agreements and most current insurance policies or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, contracts with respect to the IVAX Benefit Employee Plans; (vi) all COBRA forms and related notices, no event has occurred and(vii) all registration statements, to the knowledge of IVAX, there exists no condition or set of circumstances annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with which IVAX each Employee Plan and (viii) all written policies, rules, or any IVAX Subsidiary could be subject procedures applicable to any liability under employees of the terms Company and the employment relationship. No person who is not a current or former employee or director of the Company or an ERISA Affiliate, or the surviving spouse, beneficiary, or dependent of such IVAX Benefit Plans, ERISA, the Code a current or former employee or director is entitled to benefits under any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse EffectEmployee Plan.
(ci) Except as set forth in Section 3.09(c3.11(b)(i) of the IVAX Company Disclosure Schedule Schedule, neither the Company nor any ERISA Affiliate has, implies, or represents any liability to provide retiree life insurance, retiree health, or other retiree employee welfare benefits to any person for any reason, except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan may be required by Law COBRA or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practicesother applicable statute;
(ii) the fair market value None of the assets Employee Plans is a "multiemployer plan" as such term is defined in Section 3(37) of each funded IVAX Foreign Benefit PlanERISA, the liability a "multiple employer plan" as such term is defined in Section 4063 or 4064 of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit PlanERISA, together maintained in connection with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as trust described in Section 501(c)(9) of the Effective TimeCode or subject to either Section 412 of the Code or Title IV of ERISA; and no director, officer or employee of the Company has committed a material breach of any responsibility or obligation imposed upon fiduciaries by Title I of ERISA 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 IVAX Foreign Benefit Plan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; andany Employee Plan;
(iii) No "prohibited transaction" within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA has occurred for which exemption is not available with respect to any Employee Plan and no penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code has been imposed upon the Company;
(iv) Each Employee Plan is, and at all times since its establishment been, in compliance in all material respects both with its terms and in operation with the requirements prescribed by all applicable statutes (including ERISA and the Code), orders, or governmental rules and regulations currently in effect with respect thereto, and the Company and each IVAX Foreign Benefit Plan of its subsidiaries have performed all material obligations required to be registered has been registered performed by them under, are not in any material respect in default under or in violation of, and has been maintained in good standing with have no knowledge of any material default or violation by any other party to, any of the appropriate regulatory authorities.Employee Plans;
(dv) Except as set forth in Each Employee Plan intended to qualify under Section 3.09(d401(a) of the IVAX Disclosure ScheduleCode has obtained a currently effective favorable determination letter (or opinion letter, neither IVAX nor any IVAX Subsidiary is a party if applicable) as to any collective bargaining or other labor union contract applicable its qualified status under the Code. Each Employee Plan intended to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in qualify under Section 3.09(f401(a) of the IVAX Disclosure Schedule Code and each trust intended to qualify under Section 501(a) of the Code is, and at all times since its establishment been, so qualified and no event has occurred and no condition or as otherwise required by Lawcircumstance has existed or exists which may reasonably be expected to result in the disqualification of such Employee Plan or the imposition of any material liability, no IVAX Benefit Plan provides retiree medical penalty or retiree life insurance benefits to any person.tax under ERISA or the Code;
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each Each employee benefit plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in ------------------------------------- plan within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all stock purchase, stock ----- option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other employee benefit plans, programs, policies or agreements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise) maintained or contributed to by IVAX or any IVAX SubsidiarySeller (including for purposes of this Section 3.13, or ---- all employers that would be treated, together with respect to which IVAX or any IVAX Subsidiary could incur liability under Seller, as a single employer within the meaning of Section 4069414(b) and (c) of the Internal Revenue Code of 1986, 4212(c) or 4204 of ERISA as amended (the "IVAX Code")) or to which Seller contributes or has current or ---- contingent liability (collectively, the "Employee Benefit Plans")) is listed on ---------------------- Schedule XII annexed hereto and made a part hereof. Seller does not contribute --- and has not contributed during the past six years to any "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA, IVAX has delivered or made available and Seller is not subject to Bergen a true and correct copy any withdrawal liability under Title IV of (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan and (v) the most recent determination letter issued by the IRS ERISA with respect to any IVAX such plan. No Employee Benefit Plan qualified under is subject to Title IV of ERISA or Section 401(a) 412 of the Code.
(b) Each IVAX . Seller has not incurred and does not reasonably expect to incur any liability under Title IV of ERISA. No Employee Benefit Plan provides for post- employment or post-retirement health or medical or life insurance benefits for retired or former employees of Seller or its affiliates, except as required to avoid excise tax under Section 4980B of the Code. Except as set forth on Schedule XII: (i) each Employee Benefit Plan is in substantial compliance with --- applicable law and has been administered and operated in all material respects in accordance with its terms and all contributions required terms; (ii) each Employee Benefit Plan which is intended to be made under "qualified" within the terms meaning of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to the date of this Agreement. Except as set forth in Section 3.09(b401(a) of the IVAX Disclosure Schedule, with respect to Code has received a favorable determination letter from the IVAX Benefit Plans, no event has occurred Internal Revenue Service and, to the knowledge of IVAXSeller, there exists no event has occurred and no condition exists which would result in the revocation of any such determination; (iii) neither Seller, nor any other "disqualified person" or set "party in interest" (as defined in Section 4975(e)(2) of circumstances the Code and Section 3(14) of ERISA, respectively) has engaged in any transaction in connection with which IVAX any Employee Benefit Plan that would result in the imposition of a material penalty pursuant to Section 502(i) of ERISA or any IVAX Subsidiary could be a material tax pursuant to Section 4975 of the Code and no event has occurred and no condition exists that would otherwise subject Seller to any liability under the terms of such IVAX Benefit Plansmaterial excise tax, ERISApenalty, fine or lien imposed by ERISA or the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Employee Benefit Plan"):
; and (iiv) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law no claim, action or by the terms of such IVAX Foreign Benefit Plan have been made orlitigation, if applicable, accrued in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authorities.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedulemade, neither IVAX nor any IVAX Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX or any IVAX Subsidiary and no collective bargaining agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending commenced or, to the knowledge of IVAXSeller, threatened which may interfere with respect to any Employee Benefit Plan (other than routine claims for benefits payable in the respective business activities ordinary course, and appeals of IVAX denied such claims). Except as provided by or any IVAX Subsidiaryunder the agreements and arrangements described on Schedules XII and XIII, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As the --- ---- execution of this Agreement and the consummation of the date transactions contemplated hereby will not result in any material payment to or accelerate the vesting of this Agreementbenefits of any employee of Seller under any Employee Benefit Plan or other plan, policy or agreement of Seller. With respect to each Employee Benefit Plan, Seller has delivered or made available for review to Buyer or its counsel a true and complete copy of, to the knowledge of IVAX, none of IVAX, extent applicable: (a) the plan document (including any IVAX Subsidiary, amendments thereto) and any related trust agreement or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effect.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000other funding instrument, (iib) all severance plansthe most recent Internal Revenue Service determination letter, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, (c) the summary plan description and (iiid) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisionsthe annual report most recently filed on Internal Revenue Service Form 5500-series.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (ai) Section 4.2(m)(i) of the VLI Disclosure Schedule includes a complete list of all VLI Benefit Plans.
(ii) With respect to each employee benefit planVLI Plan, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained or contributed to by IVAX or any IVAX Subsidiary, or with respect to which IVAX or any IVAX Subsidiary could incur liability under Section 4069, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX VLI has delivered or made available to Bergen the Kaneb Entities, as applicable, a true true, correct and correct complete copy of: (A) each VLI Plan document or a summary of any unwritten VLI Plan, trust agreement and insurance contract or other funding vehicle; (iB) such IVAX Benefit Plan and the most recent Annual Report (Form 5500 Series) and accompanying schedule; (C) the current summary plan description related and any material modifications thereto (in each case, whether or not required to each IVAX Benefit Plan for which a summary plan description is required, be furnished under ERISA); (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iiiD) the most recent annual report financial report; (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivE) the most recent actuarial report or financial statement relating to an IVAX Benefit Plan report; and (vF) the most recent determination letter issued by from the IRS with respect Internal Revenue Service. Except as specifically provided in the foregoing documents delivered or made available to the Kaneb Entities or except as provided on Section 4.2(m)(ii) of the VLI Disclosure Schedule, there are no amendments to any IVAX Benefit VLI Plan that have been adopted or approved nor has any VLI Entity or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new VLI Plan.
(iii) Section 4.2(m)(iii) of the VLI Disclosure Schedule identifies each VLI Plan that is intended to be a “qualified under plan” within the meaning of Section 401(a) of the CodeCode (“VLI Qualified Plans”). The Internal Revenue Service has issued a favorable determination letter with respect to each VLI Qualified Plan and the related trust, and such determination letter has not been revoked. No circumstances exist and no events have occurred that could adversely affect the qualified status of any VLI Qualified Plan or the related trust, which could not be corrected under the Internal Revenue Service’s Employee Plans Compliance Resolution System (Revenue Procedure 2003-44) without material liability. No VLI Plan is intended to meet the requirements of Code Section 501(c)(9).
(biv) Each IVAX Benefit Plan has been administered in all material respects in accordance with its terms and all All contributions required to be made under the terms of to any of the IVAX Benefit Plans as of VLI Plan by applicable law or regulation or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any VLI Plan, for any period through the date of this Agreement have been timely made or, to the extent not required to be made or have been reflected paid on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports prior to before the date of this Agreement, have been fully reflected on the financial statements. Except as set forth in Section 3.09(b) of the IVAX Disclosure Schedule, with respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, there exists no condition or set of circumstances in connection with which IVAX or any IVAX Subsidiary could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Each VLI Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA is either (A) funded through an insurance company contract and is not a “welfare benefit fund” with the meaning of Section 419 of the Code or (B) unfunded.
(v) With respect to each VLI Plan that is subject to United States Law Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (an "IVAX Foreign Benefit Plan"):
A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX Foreign Benefit Plan have been made or, if applicable, accrued in accordance with normal accounting practices;
(iiB) the fair market value of the assets of such VLI Plan equals or exceeds the actuarial present value of all accrued benefits under such VLI Plan (whether or not vested) on an accumulated benefits obligation basis based on the most recent actuarial report for each funded IVAX Foreign Benefit Plansuch plan; (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as consummation of the Effective Time, 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 IVAX Foreign Benefit Plan and no transaction transactions contemplated by this Agreement shall cause will not result in the occurrence of any such assets reportable event; (D) all premiums to the PBGC have been timely paid in full; (E) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or insurance obligations is expected to be less than incurred by any VLI Entity or any of its Subsidiaries; and (F) the PBGC has not instituted proceedings to terminate any such benefit obligations; VLI Plan and
(iii) each IVAX Foreign Benefit Plan required , to the Knowledge of the VLI Entities, no condition exists that presents a risk that such proceedings will be registered has been registered and has been maintained in good standing with instituted or which would constitute grounds under Section 4042 of ERISA for the appropriate regulatory authoritiestermination of, or the appointment of a trustee to administer, any such VLI Plan.
(dvi) No VLI Benefit Plan is a Multiemployer Plan or a Multiple Employer Plan; and (B) none of the VLI Entities, any of their respective Subsidiaries nor any ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full or reasonably expects to incur any such liability. With respect to each VLI Benefit Plan that is a Multiemployer Plan, none of the VLI Entities, any of their respective Subsidiaries, nor any of their respective ERISA Affiliates has received any notification, nor has any reason to believe, that any such Multiemployer Plan is in reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated.
(vii) Each of the VLI Plans has been operated and administered in all material respects in accordance with applicable law and administrative rules and regulations of any Governmental Entity, including, but not limited to, ERISA and the Code, and there are no pending or, to the Knowledge of the VLI Entities, threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against the VLI Plans, any fiduciaries thereof with respect to their duties to the VLI Plans or the assets of any of the trusts under any of the VLI Plans which could reasonably be expected to result in any material liability of any of the VLI Entities or any of their respective Subsidiaries to the PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any VLI Plan, any participant in a VLI Plan, or any other party.
(viii) Except as set forth in Section 3.09(d4.2(m)(viii) of the IVAX VLI Disclosure Schedule, the VLI Entities and their respective Subsidiaries have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage that is required by Section 4980B of the Code or Part 6 of Title I of ERISA or that is provided at no expense to the VLI Entities and their respective Subsidiaries. The VLI Entities and their respective Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage.
(ix) Section 4.2(m)(ix) of the VLI Disclosure Schedule sets forth (A) an accurate and complete list of each VLI Plan under which the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event), result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit (including the forgiveness of indebtedness) to any employee, officer or director of the VLI Entities or any of their respective Subsidiaries, or could limit the right of the VLI Entities or any of their respective Subsidiaries to amend, merge, terminate or receive a reversion of assets from any VLI Plan or related trust or any employment agreement or related trust, and (B) a reasonable good faith estimate of the maximum amount of the payments or value of benefits that could become payable to officers and senior management of the VLI Entities or any of their respective Subsidiaries if their employment were terminated at either of the Effective Times.
(x) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the VLI Entities, all VLI Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements; (B) if they are intended to qualify for special tax treatment meet all requirements for such treatment; and (C) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(xi) There does not now exist, nor do any circumstances exist that could result in, any liability (A) under Title IV of ERISA, (B) under section 302 of ERISA, (C) under sections 412 and 4971 of the Code, (D) as a result of a failure to comply with the continuation coverage requirements of section 601 et seq. of ERISA and section 4980B of the Code, and (E) under corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the VLI Benefit Plans, that would be a liability of the VLI Entities or any of their respective Subsidiaries following the Effective Time. Without limiting the generality of the foregoing, neither IVAX the VLI Entities nor any IVAX Subsidiary of their respective Subsidiaries, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069, 4204 or 4212 of ERISA. With respect to each VLI Plan, there is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with respect to a VLI Plan or the imposition of any lien on the assets of the VLI Entities or any of their respective Subsidiaries under ERISA or the Code.
(xii) None of the VLI Entities or any of their respective Subsidiaries has any potential liability, contingent or otherwise, under the Coal Industry Retiree Health Benefits Act of 1992. None of VLI, any of its Subsidiaries or any entity that was ever an ERISA Affiliate of VLI or any of its Subsidiaries was, on July 20, 1992, required to be treated as a single employer under Section 414 of the Code together with an entity that was ever a party to any collective bargaining or other labor union contract applicable to persons employed by IVAX agreement or any IVAX Subsidiary and no collective bargaining other agreement is being negotiated by IVAX or any IVAX Subsidiary. As of the date of this Agreement, there is no labor dispute, strike or work stoppage against IVAX or any IVAX Subsidiary pending or, to the knowledge of IVAX, threatened which may interfere with the respective business activities United Mine Workers of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse EffectAmerica.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each Section 3.10(a) of the Disclosure Schedule describes all "employee pension benefit planplans" (as defined in Section 3(2) of ERISA)," "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other employee benefit, programdeferred compensation, arrangement stock option, restricted stock or other compensation plans, programs, policies, arrangements and contract contracts (including, without limitation, any "employee benefit plan", ," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA) maintained, as amended ("ERISA")) maintained sponsored, contributed to or required to be contributed to by IVAX Trident as of the Effective Time. Trident does not have any liability or any IVAX Subsidiary, or obligation with respect to any employee benefit plan, program, policy, agreement, commitment or arrangement, deferred compensation plan, program or arrangement, compensation plan or payroll arrangement which IVAX or any IVAX Subsidiary could incur liability under Section 4069is not a Benefit Plan. With respect to each Benefit Plan, 4212(c) or 4204 of ERISA (the "IVAX Benefit Plans"), IVAX Trident has delivered or made available to Bergen Parent a true and correct copy of of: (i) such IVAX Benefit Plan and the most recent summary plan description related to each IVAX Benefit Plan for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such IVAX Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service IRS; (ii) the "IRS"), current text and agreement for such Benefit Plan; (iii) each trust agreement relating to such Benefit Plan; (iv) the most recent actuarial report or financial statement relating to an IVAX summary plan description for each Benefit Plan for which a summary plan description is required; and (v) the most recent determination letter letter, if any, issued by the IRS with respect to any IVAX Benefit Plan qualified under Section 401(a) of the Code.
(b) Each IVAX Benefit Plan has been administered in all material respects in accordance Neither Trident nor any person under common control with its terms and all contributions required Trident, within the meaning of Section 4001 of ERISA, maintains or contributes to be made under the terms of any of the IVAX Benefit Plans as of the date of this Agreement have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the IVAX Reports Effective Time, as has at any time prior to the date Effective Time maintained or contributed to a Benefit Plan subject to Title IV of this Agreement. Except as set forth in ERISA or a multi-employer benefit plan within the meaning of Section 3.09(b3(37) or 4001(a)(3) of the IVAX Disclosure Schedule, with ERISA.
(c) With respect to the IVAX Benefit Plans, no event has occurred and, to the knowledge of IVAX, and there exists no condition or set of circumstances circumstances, in connection with which IVAX or any IVAX Subsidiary Trident could be subject to any liability under the terms of such IVAX Benefit Plans, ERISA, the Code or any other applicable Law which would individually or in the aggregate have an IVAX Material Adverse Effect.
(c) Except as set forth in Section 3.09(c) of the IVAX Disclosure Schedule or except as would not have an IVAX Material Adverse Effect, with respect to each IVAX Benefit Plan that is not subject to United States Law (an "IVAX Foreign Benefit Plan"):
(i) all employer and employee contributions to each IVAX Foreign Benefit Plan required by Law or by the terms of such IVAX 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 IVAX Foreign Benefit Plan, the liability of each insurer for any IVAX Foreign Benefit Plan funded through insurance or the book reserve established for any IVAX Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, 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 IVAX 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 IVAX Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with the appropriate regulatory authoritiesLaw.
(d) Except as set forth in Section 3.09(d) of the IVAX Disclosure Schedule, neither IVAX nor any IVAX Subsidiary is a party Trident has made available to any Parent all collective bargaining or other labor union contract contracts to which Trident is a party applicable to persons employed by IVAX or any IVAX Subsidiary Trident and no collective bargaining agreement is being negotiated by IVAX or any IVAX SubsidiaryTrident. As Schedule 3.10(d) sets forth an accurate and complete list of the date of this Agreement, there all such contracts and agreements. There is no pending or, to the knowledge of Trident, threatened labor dispute, strike or work stoppage against IVAX Trident nor its representatives or employees, has committed any IVAX Subsidiary unfair labor practices in connection with the operation of the business of Trident, and there is no pending or, to the knowledge of IVAXTrident, threatened which may interfere with the respective business activities of IVAX or any IVAX Subsidiary, except where such dispute, strike or work stoppage would not have an IVAX Material Adverse Effect. As of the date of this Agreement, to the knowledge of IVAX, none of IVAX, any IVAX Subsidiary, or any of their respective representatives or employees has committed any unfair labor practice in connection with the operation of the respective businesses of IVAX or any IVAX Subsidiary, and there is no charge or complaint against IVAX or any IVAX Subsidiary Trident by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an IVAX Material Adverse Effectstate agency.
(e) IVAX has delivered to Bergen true and complete copies of (i) all employment agreements with officers of IVAX and each IVAX Subsidiary providing for annual compensation in excess of $250,000, (ii) all severance plans, agreements, programs and policies of IVAX and each IVAX Subsidiary with or relating to their respective employees, and (iii) all plans, programs, agreements and other arrangements of IVAX and each IVAX Subsidiary with or relating to their respective employees which contain "change of control" provisions.
(f) Except as provided in Section 3.09(f) of the IVAX Disclosure Schedule or as otherwise required by Law, no IVAX Benefit Plan provides retiree medical or retiree life insurance benefits to any person.
Appears in 1 contract
Samples: Merger Agreement (Metropolitan Health Networks Inc)
