Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies. (b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect. (c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate. (d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor). (e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code. (f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws. (g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. (h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects. (i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD)
Employee Benefit Plans. Schedule 4.23 and Schedule 4.11 lists all employee benefit plans maintained by the Company and its Subsidiaries or to which any of the Company and its Subsidiaries is obligated (aor at any time within the last six years, has been obligated) to contribute or with respect to which any of the Company and its Subsidiaries has any Liability, including each single employer, multiemployer and multiple employer pension, profit-sharing, equity (e.g., membership or other limited liability company interest) bonus, money purchase, retirement, welfare benefit, savings, insurance, vacation pay, severance pay, equity purchase, equity option, phantom equity, incentive or deferred compensation and bonus plan or arrangement, and any other employee benefit plan covering any of the Company’s or its Subsidiaries’ employees, consultants, agents and ex-employees, or any of their respective dependents and beneficiaries (collectively, the “Employee Benefit Plans”). None of the Employee Benefit Plans that are not qualified plans under Section 3.10(a401(a) of the Code and exempt from income taxation under Section 501(a) of the Code provides or promises benefits to ex-employees (including retirees) of the Company Disclosure or its Subsidiaries or their dependents or beneficiaries, except as set forth on Schedule contains a correct 4.23 and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies as otherwise specifically required under Section 4980B of the following documents Code or other similar laws with respect to each material Company continuation of coverage. All Employee Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has Plans have been administered operated in all material respects in accordance with its their terms. All Employee Benefit Plans that are subject to the terms of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Code, or other statutes, laws, ordinances, codes, rules and regulations comply in form and operation in all material respects with all applicable Laws, including ERISA, the Code, and such other statutes, laws, ordinances, codes, rules and regulations, as applicable. In the Patient Protection case of each Employee Benefit Plan which is intended to be a qualified plan under Section 401(a) of the Code and Affordable Care Act exempt from income taxation under Section 501(a) of the Code, a determination has been received from the appropriate District Director of Internal Revenue Service that such plan is qualified under Section 401(a) of the Code and the trust created thereunder is exempt from federal taxation under Section 501(a) of the Code, and no facts or circumstances exist that could adversely affect the qualified status of any such plan or the tax exemption of any such trust. No such Employee Benefit Plan has incurred any accumulated funding deficiency (“ACA”within the meaning of ERISA or the Code) and each of the Health Insurance Portability Company and Accountability Actits Subsidiaries has no Liability or potential Liability on account of an accumulated funding deficiency with respect to any Employee Benefit Plan. There has been no transaction involving any Employee Benefit Plan which is a “prohibited transaction” under ERISA or the Code in connection with which the Company or its Subsidiaries would be subject to Liability under ERISA or any Tax Liability imposed by the Code, or which would subject any such Employee Benefit Plan or the Company or its Subsidiaries to a penalty under ERISA, the Code or any other statute, law, ordinance, code, rule or regulation. There has been no complete or partial termination of any Employee Benefit Plan. None of the Employee Benefit Plans listed on Schedule 4.23 or Schedule 4.11 provides for additional or accelerated payments or other consideration to be made on account of the transactions contemplated hereby. No suit, action, claim (other than claims by employees for benefits in the ordinary course of business under a medical insurance plan or claims for vacation pay in the ordinary course of business), proceeding, investigation or arbitration has been made or instituted or, to the Knowledge of the Company, threatened, with respect to any such Employee Benefit Plan or any assets thereof. All contributions or payments required to be made to such Employee Benefit Plans by their terms, the terms of any relevant collective bargaining agreement(s) or any other applicable Law, before or after the Closing Date, with respect to all periods or events occurring prior to the Closing Date (including all insurance premiums) have been properly paid or accrued (to the extent required under GAAP, ERISA or the Code) on the books of account of the Company and its Subsidiaries prior to the Closing Date (including a pro rata share with respect to any period including the Closing Date based on the ratio of the number of days in such period to the total number of days in the fiscal year of the applicable Employee Benefit Plan). The Liabilities for all benefits provided pursuant to the Employee Benefit Plans set forth on Schedule 4.23 or Schedule 4.11 have been truly and accurately provided for on the books of account of the Company. True, complete and accurate copies of the documents setting forth the terms of each Employee Benefit Plan listed on Schedule 4.23 or Schedule 4.11, including plans, agreements, amendments, trusts and all related contracts and other agreements (including corporate resolutions and minutes relating to any Employee Benefit Plan) and, where applicable, copies of each Employee Benefit Plan’s: (i) most recent summary plan descriptions and modifications thereto; (ii) notices distributed to employees, consultants, agents, dependents and other beneficiaries with regard to any Employee Benefit Plan and any continuation of coverage required under law; (iii) most recent favorable Internal Revenue Service determination letters; (iv) three most recent annual reports (IRS Forms 5500), including audited financial statements (if any) and all schedules thereto; and (v) five most recent actuarial reports, have heretofore been delivered to Buyer. There are no oral modifications to any of such Employee Benefit Plans. With respect to each Company Employee Benefit Plan which is an employee pension benefit plan (as defined in Section 3(2) of ERISA) and Company Benefit Arrangementthat is subject to Title IV of ERISA, (i) no nonthe market value of assets under such plan equals or exceeds the present value of all vested and nonvested liabilities thereunder (determined in accordance with then-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred current funding assumptions) and (ii) no act such plan has not been completely or omission has occurred partially terminated during the past six years. None of the Employee Benefit Plans is a multiemployer plan (as defined in Section 3(37)) of ERISA. For purposes of this Section 4.23, “Company” includes the Company and any trade or business (whether or not incorporated) that could reasonably be expected is a member of the same “controlled group” of corporations as, or is treated as being under “common control” with, within the meaning of Sections 414(b), (c), (m) and (o) of the Code and the Treasury Regulations promulgated thereunder, the Company. Except as set forth in Schedule 4.23, the Company is not a member of any such “controlled group.” With respect to have a Material Adverse Effect. Neither any nonqualified deferred compensation plan of the Company or its Subsidiaries that is subject to Section 409A of the Code, neither the Company nor any of its Subsidiaries is liable for has any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute obligation to any Pension Plan. There are no current person to cause any such plan to comply with Section 409A of the Code or contingent Liabilities that could reasonably be expected to be imposed upon the Company provide any “gross-up” or any of its Subsidiaries with respect similar payment to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to person in the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including event any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on plan fails to comply with Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of . No benefit or amount payable or which may become payable by the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject and its Subsidiaries pursuant to any Law thatEmployee Benefit Plan, as a result of the Transactions agreement or upon related, concurrent, or subsequent employment termination, would require or provide contract with any payment or compensation that would employee shall constitute an “excess parachute payment” under within the meaning of Section 280G of the Code. No Company Benefit Plan , which is or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior may be subject to the date imposition of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in an excise tax under Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A 4999 of the Code in all material respects.
(i) Neither the Company nor any or which would not be deductible by reason of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee Section 280G of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United StatesCode.
Appears in 4 contracts
Samples: Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.)
Employee Benefit Plans. (a) iPrint has set forth in the iPrint Disclosure Schedule a complete and accurate list of each plan, program, policy, practice, contract, agreement or other arrangement providing for employment, compensation, retirement, deferred compensation, loans, severance, separation, relocation, repatriation, expatriation, visas, work permits, termination pay, performance awards, bonus, incentive, stock option, stock purchase, stock bonus, phantom stock, stock appreciation right, supplemental retirement, fringe benefits, cafeteria benefits, or other benefits, whether written or unwritten, including, without limitation, each "employee benefit plan" within the meaning of Section 3.10(a3(3) of ERISA which is or has been sponsored, maintained, contributed to, or required to be contributed to by iPrint, any subsidiary of iPrint and, with respect to any such plans which are subject to Code Section 401(a), any trade or business (whether or not incorporated) which is or, at any relevant time, was treated as a single employer with iPrint within the meaning of Section 414(b), (c),(m) or (o) of the Company Disclosure Schedule contains Code, (a correct and complete list "iPrint ERISA Affiliate") for the benefit of all material Company Benefit Plans and material Company Benefit Arrangements. The Company any ---------------------- person who performs or who has made available to Parent complete and correct copies of the following documents performed services for iPrint or with respect to which iPrint, any subsidiary, or iPrint ERISA Affiliate has or may have any liability (including, without limitation, contingent liability) or obligation (collectively, the "iPrint Employee Plans"). ---------------------
(b) Documents. iPrint has furnished to Wood true and complete --------- copies of documents embodying each material Company Benefit Plan of the iPrint Employee Plans and material Company Benefit Arrangement, to the extent applicable: (i) all related plan documents, including (without limitation) the most recent determination or opinion letter, trust documents, insurance group annuity contracts, plan amendments, insurance policies or contracts, participant agreements, employee booklets, administrative service provider agreements agreements, summary plan descriptions, summary of material modifications, compliance and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings nondiscrimination tests for the last three (3) plan years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results Form 5500 reports filed for the last three (3) plan years; (v) the most recent summary plan description , standard COBRA forms and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRSrelated notices, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesregistration statements and prospectuses.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 4 contracts
Samples: Agreement and Plan of Reorganization (Information Technology Ventures Lp/Ca), Agreement and Plan of Reorganization (Farros Royal), Agreement and Plan of Reorganization (Iprint Com Inc)
Employee Benefit Plans. (a) Section 3.10(aSchedule 3.17(a) hereto sets forth a complete list of each written and binding oral profit-sharing, pension, severance, thrift, savings, incentive, change of control, employment, retirement, bonus, deferred compensation, group life and health insurance, and other employee benefit plan, agreement, arrangement or commitment, which is maintained, contributed to (including arrangements that involve merely forwarding employee payroll deductions) or required to be contributed to by the Company, any of its Subsidiaries or ERISA Affiliates or with respect to which the Company, any of its Subsidiaries or ERISA Affiliates may have any liability (all of which are hereinafter referred to as the "Benefit Plans"). Neither the Company, nor any of its Subsidiaries or any ERISA Affiliates has any formal commitment, or intention communicated to employees, to create any additional Benefit Plan or make any material amendment or modification to any existing Benefit Plan.
(b) With respect to each of the Benefit Plans, the Company Disclosure Schedule contains a has delivered to the Prior Purchasers true, correct and complete list copies of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies each of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementdocuments, to the extent if applicable: (i) all plan documentsdocuments (including all amendments and modifications thereof) and in the case of binding oral Benefit Plans, a written description thereof, and in either case all related agreements including the trust documentsagreement and amendments thereto, insurance contracts, service provider agreements and amendments theretoinvestment management agreements; (ii) written descriptions of the last three filed Form 5500 series and all material non-written agreements relating to any such plan or arrangementschedules thereto, as applicable; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent current summary plan description descriptions and summaries of all material modifications thereto; (viiv) the three most recent audited financial statements and actuarial valuation reports, as applicable; (v) for the last three years, all material notices or other communications received from correspondence with the IRSInternal Revenue Service, the Department of Labor, or the Pension Benefit Guaranty Corporation and any other Governmental Authority on regarding the operation or after January 1, 2014; (vii) required notices or other written communications to employeesthe administration of any Benefit Plan; and (viiivi) employee manuals any Form 5310 or handbooks containing personnel or employee relations policiesForm 5330 filed with the Internal Revenue Service.
(bc) Each Qualified Benefit Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service been operated and administered (the “IRS”i) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and (ii) in material compliance with all applicable LawsRequirements of Law including, including but not limited to, ERISA and the Code. Each Benefit Plan which is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and which is intended to be qualified under Section 401(a) of the Code and each related trust which is intended to be qualified under Section 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service and to the Knowledge of the Company, there are no circumstances that are reasonably likely to result in such Pension Plan or related trust failing to be so qualified. There is no pending or, to the Knowledge of the Company, threatened audit by any Governmental Authority, litigation or other proceeding relating to any of the Benefit Plans, any fiduciary thereof or service provider thereto, nor, to the Knowledge of the Company, is there any reasonable basis for any of the foregoing to be initiated. No Claim with respect to the administration or the investment of the assets of any Benefit Plan (other than routine claims for benefits) is pending or, to the Knowledge of the Company, threatened. The Company has not engaged in a transaction with respect to any Benefit Plan that, assuming the taxable period of such transaction expired as of the date hereof, could subject the Company or any Benefit Plan to material Taxes or penalties imposed by either Section 4975 of the Code or Section 502(i) of ERISA. No action has been taken with respect to any of the Benefit Plans to either terminate any of the Benefit Plans or to cause distributions, other than in the ordinary course of business to participants under such Benefit Plans.
(d) None of the Benefit Plans is subject to Section 412 of the Code, the Patient Protection and Affordable Care Act (“ACA”Section 302 of ERISA or Title IV of ERISA or is a "multiemployer plan" as defined in Section 3(37) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effectof ERISA. Neither the Company nor any of its Subsidiaries or ERISA Affiliates has at any time within the six-year period ending on the date hereof maintained or contributed to, and has not been obligated to contribute to, any plan subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA or such a multiemployer plan.
(e) Each Pension Plan that is liable not intended to be qualified under Section 401(a) of the Code is (i) exempt from Parts 2, 3 and 4 of Title I of ERISA as an unfunded plan that is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, as described in Sections 201(2), 301(a)(3) and 401(a)(l) of ERISA; and (ii) either (1) has complied and continues to comply with all reporting and disclosure requirements of Part 1 of Title I of ERISA, or (2) has satisfied the alternative method for such compliance set forth in 29 C.F.R. § 2520.104-23.
(f) All insurance premiums under any insurance policy related to a Benefit Plan, all contributions (including all employer contributions and employee salary reduction contributions), and all liabilities and expenses of the Company in respect of any Benefit Plan for any penalty period up to and including the Closing Date have been made, paid, or excise taxes assessable under ACA. Each individual classified as an independent contractor accrued and booked on or before the Closing Date, and, to the Knowledge of the Company, with respect to any such insurance policy or premium payment obligation, neither the Company nor any of its Subsidiaries or ERISA Affiliates is subject to a retroactive rate adjustment, loss sharing arrangement or other non-employee classification actual or contingent liability. There are no unfunded obligations under any Benefit Plan that are not fully reflected on the Financial Statements.
(g) Each Benefit Plan which is a "group health plan" within the meaning of Section 5000(b)(l) of the Code and Section 607(1) of ERISA has been administered in compliance with, and the Company and each of its Subsidiaries has otherwise complied in all respects with, (i) the requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder; (ii) the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations promulgated thereunder; and (iii) the Medicare Secondary Payor Provisions of Section 1862 of the Social Security Act and the regulations promulgated thereunder.
(h) No Benefit Plan is a Retiree Welfare Plan. To the Knowledge of the Company, no communications have been made to participants with respect to guaranteeing benefits under any Benefit Plan.
(i) The consummation of any of the transactions contemplated by the Transaction Documents will not, either alone or in combination with any other event (including but not limited to the termination of any individual's employment within a fixed period of time following such consummation) (x) entitle any employee, director or consultant to severance pay, unemployment compensation or any other payment, (y) accelerate the time of payment or vesting or increase the amount of payment with respect to any compensation due to any employee, director or consultant or (z) result in any payment which could constitute an "excess parachute payment" within the meaning of Section 280G of the Code.
(j) All persons to whom the Company or any of its Subsidiaries or ERISA Affiliates has made payments for the performance of services during the six-year period ending on the Closing Date have been properly classified as employees or non-employees for purposes of income and employment withholding Taxes and coverage under and participation in all of the Benefit Plans, and benefit accrual under each no individual who has performed services for the Company or any of its Subsidiaries or ERISA Affiliates has been improperly excluded from participation in any Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Plan. Neither the Company nor any of its Subsidiaries hasor ERISA Affiliates, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to has any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries liability with respect to any Pension Plan maintained by an ERISA Affiliateemployee leased from another employer.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(hk) The Company Benefit Plans has not incurred any liability or obligation under the Worker Adjustment and Company Benefit Arrangements have been documented Retraining Notification Act, and administered in accordance with Section 409A of the Code in all material respects.
regulations promulgated thereunder (i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company "WARN Act"), or any of its Subsidiaries that is similar state or was subject to the Laws of any jurisdiction outside of the United Stateslocal law which remains unsatisfied.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Local Matters Inc.), Stock Purchase Agreement (Local Matters Inc.), Stock Purchase Agreement (Local Matters Inc.)
Employee Benefit Plans. (a) Section 3.10(a3.11(a) of the Company Disclosure Schedule contains sets forth a correct true and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Plan. For purposes of this Agreement, “Company Benefit ArrangementPlan” shall mean each “employee benefit plan” (within the meaning of Section 3(3) of ERISA) and each other equity or equity-based incentive, to the extent applicable: (i) all plan documentscompensation, trust documentsseverance, insurance contractsemployment, service provider agreements and amendments thereto; (ii) written descriptions of all material nonconsulting, change-written agreements relating to any such plan in-control, retention, vacation, paid time off, fringe benefit, bonus, incentive, savings, retirement, deferred compensation, or other compensatory or benefit plan, agreement, program, policy or arrangement; , whether or not subject to ERISA, (iiia) Form 5500 filings for the last three entered into, contributed to (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(abe contributed to), respectively, of the Code, and, to the knowledge of the Company, no act sponsored by or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification maintained by the Company or any of its Subsidiaries has been properly classified or (b) for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon which the Company or any of its Subsidiaries with respect has any Liability (contingent or otherwise); provided, for the avoidance of doubt, that individual employment contracts for employees who are not executives or officers that do not provide for severance payments or benefits and that do not otherwise deviate from the standard form that has been provided to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as Parent need not be set forth on Section 3.10(e3.11(a) of the Company Disclosure Schedule. With respect to each Company Benefit Plan, no a copy of each of the following documents, and all amendments and modifications to such documents, has been made available to Parent: (i) the written document evidencing such Company Benefit Plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments, modifications or material supplements to such Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefitPlan, (ii) require severancethe annual report (Form 5500), termination or retention payments or if any, filed with the IRS for the last plan year, (iii) forgive any indebtedness. No the most recently received IRS determination letter, if any, relating to such Company Benefit Plan or Plan, (iv) the most recent actuarial report and/or financial statement, if any, relating to such Company Benefit Arrangement contains Plan, and (v) any provision related trust agreements, annuity contracts, insurance contracts or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws documents of any jurisdiction outside of the United Statesother funding arrangements.
Appears in 4 contracts
Samples: Merger Agreement (Patriot Transportation Holding, Inc.), Merger Agreement (Patriot Transportation Holding, Inc.), Merger Agreement (Usa Truck Inc)
Employee Benefit Plans. (a) Section 3.10(a) 3.20 of the Company Disclosure Schedule contains a correct complete and complete accurate list of all each material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies plan, program, policy, practice, contract, agreement or other arrangement providing for employment, compensation, retirement, deferred compensation, loans, severance, separation, relocation, repatriation, expatriation, visas, work permits, termination pay, performance awards, bonus, incentive, stock option, stock purchase, stock bonus, phantom stock, stock appreciation right, supplemental retirement, fringe benefits, cafeteria benefits, or other benefits, whether written or unwritten, including, without limitation, each "employee benefit plan" within the meaning of Section 3(3) of the following documents Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is or has been sponsored, maintained, contributed to, or required to be contributed to by the Company or maintained for the benefit of employees of the Company and, with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan plans which are subject to Code Section 401(a), any trade or arrangement; business (iiiwhether or not incorporated) Form 5500 filings which is or, at any relevant time, was treated as a single employer with the Company within the meaning of Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate"), (collectively, the "Company Employee Plans"). Except as otherwise disclosed in Section 3.20 of the Company Disclosure Schedule, such Section separately lists each Company Employee Plan that has been adopted or maintained by the Company, whether formally or informally, for the last three benefit of employees outside the United States (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies"Company International Employee Plans").
(b) Each Qualified Plan The Company has received a favorable determination letterfurnished to NetRatings true and complete copies of documents embodying each of the Company Employee Plans (other than the Company International Employee Plans) and summary plan descriptions of such Plans, or is and Form 5500 (Annual Report) for the subject of a favorable advisory or opinion letter as to its qualification, issued by most recent plan year. The Company has furnished NetRatings with the most recent Internal Revenue Service (the “IRS”) determination letter issued with respect to the effect that each such plan is qualified Company Employee Plan, and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan nothing has occurred that since the issuance of each such letter which could adversely affect its reasonably be expected to cause the loss of the tax-qualified status. Each status of any Company Benefit Employee Plan and subject to Code Section 401(a).
(c) Except as set forth in Section 3.20(c) of the Company Disclosure Schedule, (i) each Company Benefit Arrangement Employee Plan (other than the Company International Employee Plans) has been administered in all material respects in accordance with its terms and in compliance with the requirements prescribed by any and all applicable Lawsstatutes, rules and regulations (including ERISA, ERISA and the Code), the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to except, in each Company Benefit Plan and Company Benefit Arrangementcase, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that as could not reasonably be expected to have have, in the aggregate, a Material Adverse Effect. Neither Effect on the Company, and the Company nor and each ERISA Affiliate have performed all material obligations required to be performed by them under, are not in material respect in default under or violation of and have no knowledge of any material default or violation by any other party to, any such Company Employee Plans; (ii) any Company Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its Subsidiaries is liable qualified status under the Code, including all amendments to the Code which are currently effective, or has time remaining to apply under applicable Treasury Regulations or Internal Revenue Service pronouncements for a determination or opinion letter and to make any penalty amendments necessary to obtain a favorable determination or excise taxes assessable under ACA. Each individual classified as an independent contractor opinion letter; (iii) none of the Company Employee Plans maintained in the United States promises or provides retiree medical or other non-employee classification retiree welfare benefits to any person employed or formerly employed by the Company or any of its Subsidiaries Company; (iv) there has been properly classified for purposes no "prohibited transaction," as such term is defined in Section 406 of participation and benefit accrual under each ERISA or Section 4975 of the Code, with respect to any Company Benefit Plan and Company Benefit ArrangementEmployee Plan, except subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect.
Effect on the Company; (cv) Neither none of the Company nor or any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute ERISA Affiliate is subject to any Pension liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any Company Employee Plan. There are no current or contingent Liabilities that , subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company; (vi) all contributions required to be imposed upon made by the Company to any Company Employee Plan have been paid or any accrued on the Company Financial Statements or the books of its Subsidiaries the Company; (vii) with respect to each Company Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA (excluding any Pension such event for which the thirty (30) day notice requirement has been waived under the regulations to Section 4043 of ERISA) nor any event described in Section 4062, 4063 or 4041 or ERISA has occurred, subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company; (viii) each Company Employee Plan maintained by an ERISA Affiliate.
subject to ERISA, has prepared in good faith and timely filed all requisite governmental reports (dwhich were true and correct as of the date filed) There are and has properly and timely filed and distributed or posted all notices and reports to employees required to be filed, distributed or posted with respect to each such Company Employee Plan, subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company; (ix) no pending suit, administrative proceeding, action or other litigation has been brought, or, to the knowledge of the CompanyCompany or ACN is threatened in writing, threatened Actions (other than routine benefit claims and proceedings against or with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an Employee Plan, including any audit or examination (or potential audit or examination) inquiry by any Governmental Authority (including the IRS and the or United States Department of Labor); and (x) there has been no amendment to, written interpretation or announcement by the Company which could reasonably be expected to materially increase the expense of maintaining any Company Employee Plan above the level of expense incurred with respect to that plan for the most recent fiscal year included in the Company Financial Statements.
(ed) Except as set forth on provided in Section 3.10(e3.20(d) of the Company Disclosure Schedule, no neither the Company Benefit Plan or Company Benefit Arrangement contains any provision nor ACN maintains, sponsors, participates in, contributes to, or is obligated to contribute to, or has otherwise incurred any obligation or liability (including, without limitation, any contingent liability) under any "multiemployer plan" (as defined in Section 3(37) of ERISA) or to any "pension plan" (as defined in Section 3(2) of ERISA) subject to any Law that, as a result Title IV of ERISA or Section 412 of the Transactions Code. None of the Company or upon relatedany ERISA Affiliate has any actual or potential withdrawal liability (including, concurrentwithout limitation, any contingent liability) for any complete or subsequent employment terminationpartial withdrawal (as defined in Sections 4203 and 4205 of ERISA) from any multiemployer plan (as defined in Section 3(37) of ERISA), would subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company.
(e) With respect to each Company Employee Plan, the Company has complied with (i) increase, accelerate the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the regulations thereunder or vest any compensation state law governing health care coverage extension or benefit, continuation; (ii) require severance, termination or retention payments or the applicable requirements of the Family and Medical Leave Act of 1993 and the regulations thereunder; (iii) forgive any indebtednessthe applicable requirements of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); and (iv) the applicable requirements of the Cancer Rights Act of 1998, in each case, except to the extent that such failure to comply could not reasonably be expected to have, in the aggregate, a Material Adverse Effect on the Company. No The Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject has no material unsatisfied obligations to any Law that would promise employees, former employees, or provide qualified beneficiaries pursuant to COBRA, HIPAA, or any tax gross ups state law governing health care coverage extension or tax indemnification under Sections 280G or 409A of the Codecontinuation.
(f) Except as set forth on in Section 3.10(f3.20(f) of the Company Disclosure Schedule, no the consummation of the transactions contemplated by this Agreement (other than Transition Matters) will not (i) entitle any current or former employee, independent contractor or consultant of or to the Company Benefit or any ERISA Affiliate to material severance benefits or any other material payment (including, without limitation, unemployment compensation, golden parachute, bonus or benefits under any Company Employee Plan), except as expressly provided in this Agreement or (ii) accelerate the time of payment or vesting of any such benefits or increase the amount of compensation due any such employee, independent contractor or consultant. No benefit payable or which may become payable by the Company pursuant to any Company Employee Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would arising under this Agreement shall constitute an “"excess parachute payment” " (as defined in Section 280G(b)(1) of the Code) which is subject to the imposition of an excise Tax under Section 4999 of the Code or the deduction for which would be disallowed by reason of Section 280G of the Code. No Except as set forth in Section 3.20(f) of the Company Benefit Disclosure Schedule, each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material liability to NetRatings or the Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or (other applicable Lawsthan ordinary administration expenses typically incurred in a termination event).
(g) Neither Except as set forth in Section 3.20(g) of the Company nor any of its Subsidiaries hasDisclosure Schedule, within six (6) years prior to the date of this Agreementeach Company International Employee Plan has been established, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented maintained and administered in accordance with Section 409A of the Code compliance in all material respects.
(i) Neither respects with its terms and conditions and with the requirements prescribed by any and all statutory or regulatory laws that are applicable to such International Company Employee Plan. No Company International Employee Plan has unfunded liabilities, that, as of the Effective Time, will not be offset by insurance or fully accrued on the Company nor any Financial Statements or the books of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company. Except as required by law, no condition exists that would result in material liability to the Company or NetRatings should any of its Subsidiaries that is International Company Employee Plan (other than the Company Option Plan) be terminated or was subject to the Laws of amended at any jurisdiction outside of the United Statestime for any reason.
Appears in 4 contracts
Samples: Agreement and Plan of Reorganization, Agreement and Plan of Reorganization (Netratings Inc), Agreement and Plan of Reorganization (Netratings Inc)
Employee Benefit Plans. With respect to any member of the Frontier Group:
(a) Section 3.10(a) The Disclosure Schedule-Frontier lists each Employee Plan that each member of the Company Disclosure Schedule contains Frontier Group maintains, administers, contributes to, or has any contingent liability with respect thereto. Frontier has provided to Aspect and Esenjay a correct true and complete list copy of each such Employee Plan, current summary plan description, (and, if applicable, related trust documents) and all amendments thereto, together with (i) the three most recent annual reports, if any, prepared in connection with each such Employee Plan (Form 5500 including, if applicable, Schedule B thereto); (ii) the most recent actuarial report, if any, and trust reports prepared in connection with each Employee Plan; (iii) all material Company Benefit Plans and communications received from or sent to the IRS or the DOL within the last two years (including a written description of any material Company Benefit Arrangements. The Company has made available oral communications relating to Parent complete and correct copies of the following documents IRS Voluntary Compliance Resolution or Closing Agreement Programs); (iv) the most recent IRS determination letter with respect to each material Company Benefit Employee Plan and material Company Benefit Arrangementthe most recent application for a determination letter, to the extent both as applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description all insurance contracts or other funding arrangements, currently in force; and summaries of material modifications thereto; (vi) all material notices an actuarial study of any post-employment life or other communications received from the IRSmedical benefits provided, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesif any.
(b) Each Qualified Plan has received a favorable determination letterThe Disclosure Schedule-Frontier identifies each Benefit Arrangement that each member of the Frontier Group maintains, administers, contributes to, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified statusany contingent liability with respect thereto. Each Company Benefit Plan and each Company Benefit Arrangement has been maintained and administered in all material respects in accordance substantial compliance with its terms and with the requirements (including reporting requirements, if any) prescribed by any and all statutes, orders, rules and regulations which are applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company such Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor Benefits under any of its Subsidiaries has, within six Employee Plan or Benefit Arrangement are as represented in said documents and have not been increased or modified (6whether written or not written) years prior subsequent to the date dates of this Agreementsuch documents. To the knowledge of Frontier, maintained, sponsored or been required to contribute no member of the Frontier Group has communicated to any Pension Plan. There are no current employee or contingent Liabilities that could reasonably be expected former employee any intention or commitment to be imposed upon the Company modify any Employee Plan or Benefit Arrangement or to establish or implement any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliateother employee or retiree benefit or compensation arrangement.
(d) There No Employee Plan is (i) a Multiemployer Plan, (ii) an Employee Plan, other than any Multiemployer Plan, subject to Title IV of ERISA, (iii) maintained in connection with any trust described in Section 501(c)(9) of the Code or (iv) a plan to which Section 412 of the Code applies. No current or former member of the Frontier Group has ever maintained or become obligated to contribute to any employee benefit plan (i) that is subject to Title IV of ERISA, (ii) to which Section 412 of the Code applies, or (iii) that is a Multiemployer Plan or (iv) that is maintained in connection with any trust described in Section 501(c)(9) of the Code. No member of the Frontier Group has within the last five years engaged in, or is a successor corporation to an entity that has engaged in, a transaction described in Section 4069 of ERISA. No member of the Frontier Group is subject to withdrawal liability (whether asserted or unasserted) under Section 4201, et seq. of ERISA.
(e) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and no event has occurred since such adoption that would adversely affect such qualification and each trust created in connection with each such Employee Plan forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. A favorable determination letter has been issued by the IRS as to the qualification of each such Employee Plan for which a determination is available under the Code and to the effect that each such trust is exempt from taxation under Section 501(a) of the Code. Each Employee Plan has been maintained and administered in substantial compliance with its terms and with the requirements (including reporting requirements, if any) prescribed by any and all applicable statutes, orders, rules and regulations, including ERISA and the Code.
(f) Full payment has been made of all amounts which any member of the Frontier Group is or has been required to have paid as contributions to or benefits due under any Employee Plan or Benefit Arrangement under applicable law or under the terms of any such plan or any arrangement.
(g) No member of the Frontier Group, or any of their respective directors, officers or employees has engaged in any transaction with respect to an Employee Plan that could subject Frontier to a tax, penalty or liability for a prohibited transaction, as defined in Section 406 of ERISA or Section 4975 of the Code. None of the assets of any Employee Plan are invested in employer securities or employer real property.
(h) To the knowledge of Frontier, there are no facts or circumstances that might give rise to any liability under Title I of ERISA.
(i) No member of the Frontier Group has any current or projected liability in respect of post-retirement or post-employment welfare benefits for retired, current or former employees, except as required to avoid excise tax under Section 4980B of the Code, relating to COBRA.
(j) There is no litigation, administrative or arbitration proceeding or other dispute pending or, to the knowledge of the CompanyFrontier, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to that involves any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Employee Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(ek) Except as set forth on Section 3.10(e) No employee or former employee of any member of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject Frontier Group will become entitled to any Law thatbonus, retirement, severance, job security or similar benefit or enhanced benefit (including acceleration of an award, vesting or exercise of an incentive award) or any fee or payment of any kind solely as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except transactions contemplated hereby, except as set forth disclosed on Section 3.10(f) of the Company Disclosure Schedule, -Frontier and no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as such disclosed payment constitutes a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any parachute payment or compensation that would constitute an “excess parachute payment” under described in Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits , except as required by COBRA or other applicable Lawsdisclosed in the Disclosure Schedule- Frontier.
(gl) Neither To the Company nor any knowledge of its Subsidiaries hasFrontier, within six all group health plans (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Code Section 3(405000(b)(1) and as defined in ERISA Section 607(i)) of any member of the Frontier Group have at all times fully complied with all applicable notification and continuation coverage requirements of Section 4980B(f) of the Code and Section 601 of ERISA, and the regulations promulgated thereunder. Further, no Employee Plan provides health, medical, death or survivor benefits to any stockholders or directors who are not employees, former employees or beneficiaries thereof, except to the extent otherwise required by the continuation requirements of Section 4980B(f) of the Code and Section 601 of ERISA, and to the knowledge of Frontier there are no claims by terminated employees with respect thereto.
(hm) The Company Benefit Except as set forth in the Disclosure Schedule-Frontier, no employee or former employee, officer or director of any member of the Frontier Group is or will become entitled to receive any award under any discretionary or other bonus plans.
(n) All obligations under any Employee Plans and Company and/or Benefit Arrangements have been documented and administered in accordance with Section 409A the aggregate, accrued on the Frontier Financial Statements to the extent required (including items relating to vesting via passage of time or as a result of the Code in all material respectstransaction contemplated by this Agreement).
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 3 contracts
Samples: Acquisition Agreement (Cranberg Alex), Acquisition Agreement (Johnson Michael E), Acquisition Agreement (Frontier Natural Gas Corp)
Employee Benefit Plans. (a) Section 3.10(a4.12(a) of the Company Disclosure Schedule contains includes a correct and complete list of all material Company Employee Benefit Plans Arrangements and material Company Benefit Arrangements. The all Material Employment Agreements.
(b) With respect to each Plan, the Company has delivered or made available to Parent a true, correct and complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicablecopy of: (i) each writing constituting a part of such Plan, including all plan documents, employee communications, benefit schedules, trust documentsagreements, and insurance contracts, service provider agreements contracts and amendments theretoother funding vehicles; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangementthe most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) Form 5500 filings for the last three (3) years, including all schedules current summary plan description and any material modifications thereto, annual reportif any (in each case, financial statements and any related actuarial reportswhether or not required to be furnished under ERISA); (iv) nondiscrimination testing results for the last three (3) yearsmost recent annual financial report, if any; (v) the most recent summary plan description actuarial report, if any; and summaries of material modifications thereto; (vi) all material notices or other communications received the most recent determination letter from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”), if any. The Company has delivered or made available to Parent a true, correct and complete copy of each Material Employment Agreement. Except as specifically provided in the foregoing documents delivered to Parent, there are no amendments to any Plan or Material Employment Agreement that have been adopted or approved nor has the Company or any of its Subsidiaries committed to make any such amendments or to adopt or approve any new Plan or Material Employment Agreement.
(c) Section 4.12(c) of the Company Disclosure Schedule identifies each Plan that is intended to be a “qualified plan” within the effect that such plan is qualified meaning of Section 401(a) of the Code (“Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and the related trust related thereto that has not been revoked, or there is exempt from federal income taxes under Sections 401(a) pending, or time remaining in which to file, an application for such a determination letter, and 501(a), respectively, the Company knows of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has existing circumstances and no events have occurred that could adversely affect the qualified status of any Qualified Plan or the related trust and which would not be correctible under the Employee Plans Correction Resolution System without material cost to the Company and its qualified statusSubsidiaries. Section 4.12(c) of the Company Disclosure Schedule identifies each trust funding to any Plan which is intended to meet the requirements of Code Section 501(c)(9), and each such trust meets such requirements and provides no disqualified benefits (as such term is defined in Code Section 4976(b)).
(d) All contributions required to be made to any Plan by applicable Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Plan, for any period through the date hereof have been timely made or paid in full. Each Plan that is an employee welfare benefit plan under Section 3(1) of ERISA either (i) is funded through an insurance company contract and is not a “welfare benefit fund” with the meaning of Section 419 of the Code or (ii) is unfunded.
(e) With respect to each Plan, the Company Benefit and its Subsidiaries have complied, and are now in compliance, in all material respects, with all provisions of ERISA, the Code and all Laws applicable to such Plans. Each Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and terms. There is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security with all applicable Laws, including ERISA, respect to a Plan or the imposition of any lien on the assets of the Company or any of its Subsidiaries under ERISA or the Code, the Patient Protection and Affordable Care Act .
(“ACA”f) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) no non-exempt transactions prohibited by there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 4975 302 of ERISA, whether or ERISA Section 406 have occurred and not waived; (ii) the fair market value of the assets of such Plan exceeds the present value of the accumulated benefit obligation as determined in accordance with U.S. Financial Accounting Standards Board Statement No. 87, as reflected in the 2005 Financial Statements; (iii) no act or omission reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30)-day notice requirement has not been waived has occurred since January 2, 2000, and the consummation of the transactions contemplated by this agreement will not result in the occurrence of any such reportable event; (iv) all premiums to the Pension Benefit Guaranty Corporation (the “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 expected to be incurred by the Company or any of its Subsidiaries; and (vi) the PBGC has not instituted proceedings to terminate any such 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 Plan.
(g) (i) No Employee Benefit Arrangement is a “multiemployer plan” within the meaning of Section 4001(a)(3) 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”); (ii) none of the Company, any of its Subsidiaries or any of their respective ERISA Affiliates has, at any time during the last six (6) years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan; and (iii) none of the Company, any of its Subsidiaries or any of their respective ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full.
(h) There does not now exist, nor do any circumstances exist that could reasonably result in, any Controlled Group Liability that would be expected to have a Material Adverse Effectliability of the Company or any of its Subsidiaries following the Effective Time. Neither Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(i) The Company and its Subsidiaries is liable have no liability for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor life, health, medical or other non-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, premiums for which are either paid by the employee classification or other qualified beneficiary or, are not, in the aggregate, material. There has been no communication to employees by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as which could not reasonably be expected interpreted to have promise or guarantee such employees retiree health or life insurance or other retiree death benefits on a Material Adverse Effectpermanent basis.
(cj) Neither Section 4.12(j) of the Company nor Disclosure Schedule sets forth an accurate and complete list of any of its Subsidiaries has, within six (6) years prior to Plan or Material Employment Agreement under which the date execution and delivery of this Agreement, maintainedthe consummation of the transactions contemplated hereby or any related event could (either alone or in conjunction with any other event) result in, sponsored cause the accelerated vesting, funding or been required to contribute delivery of, or increase the amount or value of, any payment or benefit to any Pension Plan. There are no current employee, officer or contingent Liabilities that could reasonably be expected to be imposed upon director of the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrentSubsidiaries, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of could limit the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee right of the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Plan or related trust or any Material Employment Agreement or related trust. As of the date hereof, the Company has provided to Parent, with respect to each of Messrs. Pickrell, Tomassi, Even, Pitz, Semmelmayer, Zee, Xxxxxxx and Yorba (i) the number, vesting dates, exercise price (to the extent applicable), and term (to the extent applicable) of all equity and equity-based compensation awards held by each such individual, (ii) the annual base salary as of the date hereof, annual bonus amounts for each of 2003, 2004 and 2005 of each such individual (except for Xx. Xxxx’x 2005 bonus amount which has been annualized for his partial year of employment) for 2006, the pro rata bonus for each such individual, in each case, that may be paid or provided in connection with the Merger (alone or in conjunction with any other events) and (iii) total gross income listed on each individual’s W-2 for each of the last five taxable years (2001-2005), or for any shorter period during which each individual was employed by the Company. No employee other than the employees named in this Section 4.12(j) is entitled to a gross-up payment with respect to the imposition of any tax under Section 4999 of the Code.
(k) None of the Company and its Subsidiaries nor any other Person, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or was Section 406 of ERISA), which could subject any of the Plans or their related trusts, the Company, any of its Subsidiaries or any Person that the Company or any of its Subsidiaries has an obligation to indemnify, to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(l) There are no pending or threatened claims (other than claims for benefits in the ordinary course of business consistent with past practice), lawsuits or arbitrations which have been asserted or instituted, and, to Company’s knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Plans, any fiduciaries thereof with respect to their duties to the Plans or the assets of any of the trusts under any of the Plans which could reasonably be expected to result in any material liability of the Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan, any Plan, any participant in a Plan, or any other party.
(m) All material Employee Benefit Arrangements subject to the Laws Law of any jurisdiction outside of the United StatesStates (i) have been maintained in all material respects in accordance with all applicable requirements, (ii) if they are intended to qualify for special tax treatment meet all necessary requirements for such treatment, and (iii) 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.
(n) Each Option has been granted with an exercise price no less than the “fair market value” (within the meaning of Section 409A of the Code) of a Common Share as of the grant date and the term of no Option has been extended after the grant date of such Option (except for extensions that would not result in the imposition of taxes or penalties under Section 409A of the Code).
Appears in 3 contracts
Samples: Merger Agreement (Danaher Corp /De/), Merger Agreement (Sybron Dental Specialties Inc), Merger Agreement (Danaher Corp /De/)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule contains a correct All benefit and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementcompensation plans, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating policies or arrangements maintained, sponsored or contributed to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company NBT or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no covering current or contingent Liabilities that could reasonably be expected to be imposed upon the Company former employees of NBT or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge and current or former directors of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans NBT or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has(collectively, within six (6the “NBT Benefit Plans”) years prior to are in compliance with all applicable laws, including ERISA and the date of this AgreementCode, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(ib) Neither Each NBT Benefit Plan which is an “employee pension benefit plan” within the Company nor meaning of Section 3(2) of ERISA (a “NBT Pension Plan”) and which is intended to be qualified under Section 401(a) of the Code, has received a favorable determination (or, if applicable, opinion or advisory) letter from the IRS, and to the Knowledge of NBT, there are no circumstances likely to result in revocation of any such favorable determination (or, if applicable, opinion or advisory) letter or the loss of its Subsidiaries maintains the qualification of such NBT Pension Plan under Section 401(a) of the Code. Other than as set forth in NBT Disclosure Schedule 4.15(b), there is no pending or, to NBT’s Knowledge, threatened claim, action, suit, litigation, proceeding, arbitration, mediation, investigation or audit relating to the NBT Benefit Plans (other than routine claims for benefits in the normal course). NBT has maintained not engaged in a transaction with respect to any NBT Benefit Plan or Benefit Arrangement covering any current or former employee NBT Pension Plan that, assuming the taxable period of such transaction expired as of the Company date hereof, could subject NBT to a material tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA.
(c) Neither NBT nor any entity which is considered to be one employer with NBT under Section 4001 of its Subsidiaries that ERISA or Section 414 of the Code maintains, sponsors, participates in or contributes to (or has any obligation to contribute to), or has ever maintained, sponsored, participated in or contributed to (or had any obligation to contribute to), or has or is reasonably expected to have any direct or was indirect liability with respect to any plan subject to the Laws Title IV of ERISA, including any jurisdiction outside “multiemployer plan,” as defined in Section 3(37) of the United StatesERISA.
Appears in 3 contracts
Samples: Merger Agreement (NBT Bancorp Inc), Merger Agreement (Evans Bancorp Inc), Merger Agreement (Evans Bancorp Inc)
Employee Benefit Plans. (a) Schedule 5.17 contains a list setting forth each employee benefit plan or arrangement of Corporation, including but not limited to employee profit sharing plans, as defined in Section 3.10(a3(2) of the Company Disclosure Schedule contains a correct Employee Retirement Income Security Act of 1974, as amended ("ERISA"), multiemployer plans, as defined in Section 3(37) of ERISA, employee welfare benefit plans, as defined in Section 3(1) of ERISA, deferred compensation plans, stock option plans, bonus plans, stock purchase plans, hospitalization, disability and complete list other insurance plans, severance or termination pay plans and policies, whether or not described in Section 3(3) of all material Company ERISA, in which employees, their spouses or dependents, of Corporation participate ("Employee Benefit Plans Plans") (true and material Company Benefit Arrangements. The Company has made available to Parent complete and correct accurate copies of which, together with the following documents most recent annual reports on Form 5500 and summary plan descriptions with respect thereto, were furnished to Purchaser). With respect to each material Company Employee Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance compliance with its terms and with all applicable Lawslaws, including ERISAincluding, but not limited to, ERISA and the Code; (ii) no actions, suits, claims or disputes are pending, or threatened; (iii) no audits, inquiries, reviews, proceedings, claims, or demands are pending with any governmental or regulatory agency; (iv) there are no facts which could give rise to any material liability in the Patient Protection event of any investigation, claim, action, suit, audit, review, or other proceeding; (v) all material reports, returns, and Affordable Care Act similar documents required to be filed with any governmental agency or distributed to any plan participant have been duly or timely filed or distributed; and (“ACA”vi) and no "prohibited transaction" has occurred within the Health Insurance Portability and Accountability Act. meaning of the applicable provisions of ERISA or the Code.
(b) With respect to each Company Employee Benefit Plan and Company Benefit Arrangement, intended to qualify under Code Section 401(a) or 403(a): (i) no non-the Internal Revenue Service has issued a favorable determination letter, true and correct copies of which have been furnished to Purchaser, that such plans are qualified and exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and from federal income taxes; (ii) no act such determination letter has been revoked nor, to the best knowledge of Corporation and Seller, has revocation been threatened, nor has any amendment or other action or omission has occurred that could reasonably be expected with respect to have a Material Adverse Effect. Neither any such plan since the Company nor any date of its Subsidiaries is liable for most recent determination letter or application therefor in any penalty respect which would adversely affect its qualification or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of materially increase its Subsidiaries costs; (iii) no such plan has been properly classified amended in a manner that would require security to be provided in accordance with Section 401(a)(29) of the Code; (iv) no reportable event (within the meaning of Section 4043 of ERISA) has occurred, other than one for purposes which the 30-day notice requirement has been waived; and (v) as of participation and the Closing Date, the present value of all liabilities that would be "benefit accrual liabilities" under each Company Benefit Plan and Company Benefit Arrangement, except as could Section 4001(a)(16) of ERISA if benefits described in Code Section 411(d)(6)(B) were included will not reasonably be expected to have a Material Adverse Effectexceed the then current fair market value of the assets of such plan (determined using the actuarial assumptions used for the most recent actuarial valuation for such plan).
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge None of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Employee Benefit Plans obligates Corporation to pay separation, severance, termination or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, similar benefits solely as a result of the Transactions any transaction contemplated by this Agreement or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, solely as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under a "change of control" (as such term is defined in Section 280G of the Code. No Company Benefit Plan ), and all required or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
discretionary (g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A historical practices) payments, premiums, contributions, reimbursements, or accruals for all periods ending prior to or as of the Code in all material respects.
(i) Neither Closing shall have been made or properly accrued on the Company nor any Current Balance Sheet of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee Corporation as of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside Closing, and none of the United StatesEmployee Benefit Plans has any unfunded liabilities which are not reflected on the Current Balance Sheet of Corporation.
Appears in 3 contracts
Samples: Exchange Agreement and Plan of Reorganization (Make Your Move Inc), Exchange Agreement and Plan of Reorganization (Make Your Move Inc), Exchange Agreement and Plan of Reorganization (Make Your Move Inc)
Employee Benefit Plans. (a) Section 3.10(a5.19(a) of the Company Parent Disclosure Schedule contains Letter sets forth a correct and complete list of all material Company Parent Employee Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesPlans.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Parent Employee Benefit Plan and each Company Benefit Arrangement has been administered (i) complies in all material respects in accordance form and in operation with its terms and with all applicable Laws, including requirements under ERISA, the CodeCode or any other applicable Law and (ii) has been and is operated and funded in all material respects in such a manner as to qualify, the Patient Protection where appropriate, for both federal and Affordable Care Act (“ACA”) state purposes, for income tax deferral for its participants, tax-exempt status for its funding vehicle, and the Health Insurance Portability allowance of deductions and Accountability Actcredits with respect to contributions thereto. With respect to each Company Parent Employee Benefit Plan and Company Benefit ArrangementPlan, all contributions, payments, premiums, expenses, reimbursements or accruals for all periods ending on or prior to the Closing Date (iincluding periods from the first day of the then current plan year to the Closing Date) no non-exempt transactions prohibited by Code Section 4975 shall have been timely made in all material respects or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectaccrued in accordance with past practice.
(c) Neither the Company Parent or its Subsidiaries nor any of its Subsidiaries has, within six (6) years prior to predecessors that operated the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company business or any of its Subsidiaries Parent Plan Affiliate participates in or makes contributions to or has any other liability (contingent or otherwise) with respect to any Pension Plan maintained by an “employee benefit plan” (as defined in Section 3(3) of ERISA) which is or was (i) a “multiemployer plan” within the meaning of Section 3(37) or 4001 of ERISA, (ii) a “multiple employer plan” within the meaning of Code Section 413(c), (iii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA Affiliateor (iv) subject to Section 302 or Title IV of ERISA or Section 412 of the Code.
(d) There are no Claims pending or, to the knowledge of Parent’s Knowledge, Claims or investigations threatened in writing with respect to any Parent Employee Benefit Plan or the Company, threatened Actions assets thereof (other than routine benefit claims and proceedings with respect for benefits), and, to qualified domestic relations orders) relating the Parent’s Knowledge, there are no facts which would reasonably be expected to give rise to any Company Benefit Plans material Liability, action, suit, investigation, or Company Benefit Arrangements (including any such claim Claim against any Parent Employee Benefit Plan, any fiduciary of or plan administrator or other Person dealing with any such Company Parent Employee Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)assets thereof.
(e) Except as set forth on Section 3.10(eNo Parent Employee Benefit Plan provides medical, health, life insurance or other welfare-type benefits to retirees or former employees, owners or consultants or individuals who terminate (or have terminated) employment with the Parent Companies or the spouses or dependents of any of the Company Disclosure Scheduleforegoing (except for healthcare continuation coverage for former employees, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject their spouses and other dependents as required to any Law that, as a result be provided under Section 4980B of the Transactions Code or upon related, concurrent, Sections 601 through 608 of ERISA or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Codesimilar state law).
(f) Except as set forth on Section 3.10(f) No Parent Employee Benefit Plan, or any other agreement, program, policy or other arrangement by or to which Parent or any of the Company Disclosure Scheduleits Subsidiaries is a party, no Company Benefit Plan or Company Benefit Arrangement contains any provision is bound or is subject otherwise liable, by its terms or in effect would reasonably be expected to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that transfer of money, property or other consideration on account of or in connection with the transactions contemplated by this Agreement or any subsequent termination of employment which payment would constitute an “excess parachute payment” under within the meaning of Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 3 contracts
Samples: Purchase Agreement (Fortress Investment Group LLC), Purchase Agreement (Walker & Dunlop, Inc.), Purchase Agreement (Walker & Dunlop, Inc.)
Employee Benefit Plans. (a) Except as set forth in Section 3.10(a) 3.11 of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.Schedule:
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(ca) Neither the Company nor any of its Subsidiaries hasCompany Subsidiary maintains or sponsors, within six (6) years prior to the date of this Agreement, maintained, sponsored or been nor is required to contribute make contributions to, any pension, profit-sharing, bonus, incentive, welfare or other employee benefit plan within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or any other material employee benefit program (such plans and related trusts, insurance and annuity contracts, funding media and related agreements and arrangements, other than any "multiemployer plan" (within the meaning of Section 3(37) or Section 4001(a)(3) of ERISA), being hereinafter referred to any Pension Plan. There are no current or contingent Liabilities as the "Benefit Plans" and such multiemployer plans being hereinafter referred to as the "Multiemployer Plans");
(b) Each Benefit Plan complies in all material respects with all requirements of ERISA and the Code;
(c) Each Benefit Plan that could reasonably be expected is intended to be imposed upon qualified under Section 401(a) of the Company or any Code has received a favorable determination letter from the Internal Revenue Service as to such qualification within the period of its Subsidiaries with respect to any Pension Plan maintained time prescribed by an ERISA Affiliate.law;
(d) Neither the Company nor any Company Subsidiary maintains, sponsors or contributes to (nor is required to contribute to) any Multiemployer Plan;
(e) No Benefit Plan is a "defined benefit plan" (within the meaning of Section 3(35) of ERISA);
(f) Neither the Company nor any Company Subsidiary has engaged in, and the Company has no knowledge of any fiduciary or other "disqualified person or party in interest" of any Benefit Plan of any Company Subsidiary that has engaged in, any "prohibited transaction" (within the meaning of Section 406 of ERISA or Section 4975(c) of the Code); and
(g) There are no claims, actions, lawsuits, proceedings, investigations or audits pending or, to the knowledge of the Company, threatened Actions against any of the Benefit Plans, the assets of any of the trusts under such plans, the plan sponsor, the plan administrator or any fiduciary of any of the Benefit Plans (other than routine benefit claims and proceedings with respect claims) and, to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including the knowledge of the Company, there is no basis for any such claim against any fiduciary of any such Company Benefit Plan claim, action, lawsuit, proceeding, investigation or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)audit.
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 3 contracts
Samples: Merger Agreement (Plato Holdings Inc), Merger Agreement (Novacare Employee Services Inc), Merger Agreement (Plato Holdings Inc)
Employee Benefit Plans. (a) Section 3.10(aSchedule 4.9(a) of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicablesets forth: (i) all plan "employee benefit plans", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other material employee benefit arrangements or payroll practices, including, without limitation, any such arrangements or payroll practices providing severance pay, sick leave, vacation pay, salary continuation for disability, retirement benefits, deferred compensation, bonus pay, incentive pay, stock options, hospitalization insurance, medical insurance, life insurance, scholarships or tuition reimbursements, maintained by the Company or to which the Company is obligated to contribute thereunder for current or former employees or directors of the Company (the "Employee Benefit Plans"). Neither the Company nor any trade or business (whether or not incorporated) which is or has ever been under control or treated as a single employer with the Company under Section 414(b), (c), (m), or (o) of the Internal Revenue Code of 1986, as amended (the "Code") ("ERISA Affiliate") has ever maintained, contributed to or been obligated to contribute to an "employee pension plan", as defined in Section 3(2) of ERISA.
(b) All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Employee Benefit Plans or by law to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension), and all contributions for any period ending on or before the Effective Time which are not yet due will have been paid or accrued on or prior to the Effective Time.
(c) True, correct and complete copies of the following documents, with respect to each of the Employee Benefit Plans and Pension Plans, have been delivered or made available to the Purchaser by the Company: (i) all plans and related trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangementthe most recent Forms 5500; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reportsInternal Revenue Service determination letter; (iv) nondiscrimination testing results for the last three (3) yearssummary plan descriptions; (v) the most recent summary plan description actuarial report relating to the Employee Benefit Plans and summaries of material modifications theretothe Pension Plans; and (vi) written descriptions of all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other non-written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) agreements relating to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Employee Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA AffiliatePlans.
(d) There are no pending oractions, claims or lawsuits which have been asserted or instituted against the Employee Benefit Plans, the assets of any of the trusts under such plans or the plan sponsor or the plan administrator, or against any fiduciary of the Employee Benefit Plans with respect to the knowledge operation of the Company, threatened Actions such plans (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any claims), nor does the Company Benefit Plans or Company Benefit Arrangements (including have knowledge of facts which could form a valid basis for any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)lawsuit.
(e) Except as set forth on Section 3.10(eThe Employee Benefit Plans have been maintained, in all material respects, in accordance with their terms and with all provisions of ERISA and the Code (including rules and regulations thereunder) and other applicable federal and state laws and regulations, and neither the Company, any Subsidiary of the Company Disclosure Schedule, no Company nor any "party in interest" or "disqualified Person" with respect to the Employee Benefit Plan Plans has engaged in a "prohibited transaction" within the meaning of Section 406 of ERISA or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G 4975 of the Code. No Company fiduciary to any Employee Benefit Plan has any current liability for breach of fiduciary duty or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA any other failure to act or other applicable Laws.
(g) Neither comply in connection with the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, administration or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A investment of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws assets of any jurisdiction outside of the United StatesEmployee Benefit Plan.
Appears in 3 contracts
Samples: Merger Agreement (Cellular Communications International Inc), Agreement and Plan of Merger (Cellular Communications International Inc), Merger Agreement (Olivetti S P A)
Employee Benefit Plans. (a) Section 3.10(aEMPLOYEE BENEFIT PLANS, COLLECTIVE BARGAINING AND EMPLOYEE AGREEMENTS, AND SIMILAR ARRANGEMENTS.
(1) The Company Disclosure Letter lists all employee benefit plans and collective bargaining, employment or severance agreements or other similar arrangements to which or by which the Company or any Subsidiary of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies is bound, legally or otherwise, or under which there is any continuing obligation of the following documents with respect Company or any Subsidiary of the Company (collectively, the "PLANS"), including, without limitation, (a) any profit-sharing, deferred compensation, bonus, stock option, stock purchase, pension, retainer, consulting, retirement, severance, welfare or incentive plan, agreement or arrangement, (b) any material plan, agreement or arrangement providing for "fringe benefits" or perquisites to each material Company Benefit Plan and material Company Benefit Arrangementemployees, officers, directors or agents, including but not limited to benefits relating to the extent applicable: Company automobiles, clubs, vacation, child care, parenting, sabbatical, sick leave, medical, dental, hospitalization, life insurance and other types of insurance, or (ic) all plan documentsany other "employee benefit plan" within the meaning of Section 3(3) or the Employee Retirement Income Security Act of 1974, trust documents, insurance contracts, service provider agreements and amendments thereto; as amended (ii"ERISA").
(2) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three [intentionally omitted]
(3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for To the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the best knowledge of the Company, there are no act negotiations, demands or omission proposals that are pending or have been made which concern matters now covered by the Plans, or that (if adopted) would be covered, by employee benefit plans, agreements or arrangements of the type described in the operation of such plan has occurred that could adversely affect its qualified status. Each this section.
(4) The Company Benefit Plan and each Subsidiary of the Company Benefit Arrangement has been administered are in compliance in all material respects in accordance with its terms and with all the applicable Laws, including ERISAprovisions of ERISA (as amended through the date of this Agreement), the Coderegulations and published authorities thereunder, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With all other laws applicable with respect to the Plans. The Company and each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither Subsidiary of the Company nor any have performed all of its Subsidiaries is liable for any penalty or excise taxes assessable their obligations under ACAthe Plans. Each individual classified as an independent contractor or other non-employee classification by To the best knowledge of the Company or any as of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There there are no current actions (other than routine claims for benefits) pending or contingent Liabilities that could reasonably be expected to be imposed upon threatened against the Company Plans or any their assets, or arising out of its Subsidiaries the Plans and all of the Plans have been operated in compliance in all material respects with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to their terms. To the best knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary as of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute no facts exist which could give rise to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAsuch actions.
(h5) All obligations of the Company and each Subsidiary of the Company under each of the Plans (x) that are due prior to the Effective Time have been paid or will be paid prior to that date, and (y) that have accrued prior to the Effective Time have been or will be paid or properly accrued at that time.
(6) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A each Subsidiary of the Code in Company have classified all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of individuals who perform services for the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside Subsidiary of the United StatesCompany correctly under the Plans, ERISA and the Code as common law employees, independent contractors or leased employees, except where the failure to classify individuals correctly could not result in a material liability for the Company or the Plans.
Appears in 3 contracts
Samples: Merger Agreement (International Paper Co /New/), Merger Agreement (Shorewood Packaging Corp), Merger Agreement (International Paper Co /New/)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Except as listed on Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents 4.13(a), with respect to any current or former employees, officers, directors or consultants providing services to the MED Business or the STD Business of the Company, Newco or the Sold Subsidiaries (collectively, "Relevant Service Provider"), neither Seller, the Company, Newco nor any of the Sold Subsidiaries maintains or contributes to, nor has any obligation to contribute to or has any other Liability under, any "pension plans" (as defined under Section 3(2) of ERISA) (the "Pension Plans"), "welfare plans" (as defined under Section 3(1) of ERISA) (the "Welfare Plans") or any other material employee benefit or compensation plan, policy, program or arrangement (whether of an individual or collective nature), including but not limited to each other material employment, severance, holiday, paid time off or disability plan, policy, agreement or arrangement, whether or not subject to ERISA (together with any Pension Plans and Welfare Plans, the "Benefit Plans"). Benefit Plans that are sponsored or maintained solely by one or more of Seller, the Company, Newco or the Sold Subsidiaries and that will be transferred as part of the transactions contemplated by this Agreement are denoted by asterisk on Schedule 4.13(a) and are referred to herein as "Transferred Company Benefit Plan and material Plans".
(b) With respect to each Transferred Company Benefit ArrangementPlan, prior to the date hereof, true, correct, and complete copies (or, to the extent applicableno such copy exists, an accurate description) of the applicable following documents have been made available to Buyer: (i) all current plan documents, documents (including trust documentsagreements, insurance contracts, contracts and other funding or service provider agreements arrangements) and any amendments thereto; (ii) written descriptions of all material non-written agreements relating to any Forms 5500 and attached schedules, including audited financial statements and actuarial valuation reports, for the most recent plan year for which such plan or arrangementForms 5500 have been filed; (iii) Form 5500 filings for any estimates received regarding withdrawal liability with respect to a Benefit Plan that is a "multiemployer plan" as defined in Section 4001(a)(3) of the last three Employee Retirement Income Security Act of 1974, as amended (3"ERISA") years(each, including all schedules thereto, annual report, financial statements and any related actuarial reportsa "Multiemployer Plan"); (iv) nondiscrimination testing results for the last three (3) yearssummary plan descriptions or other written summaries; (v) the most recent summary plan description and summaries of material modifications theretodetermination letter received from the IRS; (vi) all material notices or other communications received from the IRS, Department most recent actuarial valuation statements and any formal interim valuation statements that have been prepared in writing by the actuary of Labor, or the applicable Transferred Company Benefit Plan since that valuation in relation to any other Governmental Authority on or after January 1, 2014Transferred Company Benefit Plan; (vii) required notices copies of any voluntary correction filed with the Internal Revenue Service or other written communications to employees; the U.S. Department of Labor regarding any qualification or operation failure under such Benefit Plan, and (viii) employee manuals any correspondence with or handbooks containing personnel notice from the Internal Revenue Service, the U.S. Department of Labor or employee relations policiesthe Pension Benefit Guaranty Corporation (the "PBGC") on or after October 1, 2011, other than routine notice provided in the regular course of plan administration.
(bc) Each Qualified Plan of the Pension Plans that is intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable and up to date determination letter, letter from the Internal Revenue Service as to its tax-qualified status under the Code or is in the form of a prototype plan that is the subject of a favorable advisory or opinion letter as to its qualification, issued by from the Internal Revenue Service Service, and to the Company's Knowledge, there are no existing circumstances likely to result in the revocation of any such determination letter or disqualification of any such Benefit Plan.
(d) With respect to the “IRS”WHX Plan, (i) as described in Schedule 4.13(d)(i), none of Seller, the Company, Newco nor any Sold Subsidiary is a participating employer or a contributing sponsor (for purposes of Title IV of ERISA) of the WHX Plan, (ii) the PBGC has not instituted proceedings to terminate the WHX Plan or appoint a trustee or administrator of the WHX Plan nor has Threatened to take any of the foregoing actions, (iii) none of Seller, the Company, Newco nor any Sold Subsidiary has any Liability (including Liability pursuant to Section 4069 of ERISA but excluding premiums to the PBGC due but not yet delinquent) to the effect that such plan is qualified PBGC or under Title IV of ERISA and (iv) Parent, the Company, Newco and the trust related thereto is exempt from federal income taxes under Sections 401(aSold Subsidiaries are in compliance in all material respects with any settlement agreement with the PBGC applicable to the WHX Plan.
(e) and 501(a)With respect to each of the Pension Plans subject to Title IV of ERISA, respectivelywithin the past six (6) years, (i) there has been no failure to satisfy the minimum funding standards, whether or not waived, imposed by Section 302 of ERISA or Section 412 of the Code, and(ii) except as set forth on Schedule 4.13(e), no reportable event within the meaning of Section 4043 of ERISA (for which the disclosure requirements of Reg. § 4043.1 et seq., promulgated by the PBGC, have not been waived) has occurred, (iii) the PBGC has not instituted proceedings to terminate any Pension Plan or appoint a trustee or administrator of any Pension Plan, (iv) no circumstances exist that constitute grounds under ERISA entitling the PBGC to institute such proceedings, (v) no Liability (including Liability pursuant to Section 4069 of ERISA but excluding premiums to the knowledge PBGC due but not yet delinquent) to PBGC or under Title IV of ERISA has been or would reasonably be expected to be incurred by Seller, the Company, no act Newco or omission in the operation of such plan has occurred Sold Subsidiaries with respect to a Pension Plan that could adversely affect its qualified status. Each Company Benefit result in Liabilities to the Company, Newco or any Sold Subsidiary and (vi) no Pension Plan and each Company Benefit Arrangement has been administered terminated by Buyer or any trade or business xxxxxx common control with it for purposes of Section 4001(b) of ERISA.
(f) Each Transferred Company Plan has, in all material respects respects, been established, funded, maintained and administered in accordance compliance with its terms and with all applicable Laws, including provisions of ERISA, the Code, the Patient Protection Code and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or all other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectapplicable Law.
(cg) Neither the Company nor any of its Subsidiaries hasSince January 1, within six (6) years prior to 2011 and through the date of this Agreement, maintained, sponsored or been required to contribute no material Action relating to any Pension Plan. There are no current Transferred Company Benefit Plan has been brought by any Governmental Authority or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions third Person (other than routine benefit claims and proceedings with respect to qualified domestic relations ordersfor benefits in the ordinary course) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAThreatened.
(h) The With respect to the Transferred Company Benefit Plans Plans, all required contributions and Company Benefit Arrangements have been documented and administered payments due or accrued thereunder, determined in accordance with Section 409A of applicable Law and GAAP and prior funding and accrual practices (the Code extent such practices are in accordance with applicable Law and GAAP), have been timely and fully made and discharged or properly accrued and reflected as a liability on the Latest Balance Sheet in all material respects.
(i) Neither Except as set forth on Schedule 4.13, (i) none of the Company Benefit Plans is subject to Title IV of ERISA nor provides for health, medical, life insurance benefits or other welfare benefits to retired or former employees of Seller, the Company, Newco or the Sold Subsidiaries (other than under Section 4980B of the Code, or similar state law), (ii) none of Seller, the Company, Newco or any of its the Sold Subsidiaries maintains is a participating or has maintained contributing employer in any Benefit Multiemployer Plan with respect to employees of Seller, the Company, Newco or Benefit Arrangement covering the Sold Subsidiaries and (iii) none of Seller, the Company, Newco or any current or former employee of the Company Sold Subsidiaries has, or would reasonably be expected to have, any withdrawal liability with respect to any Multiemployer Plan contributed to by Seller or any of its Affiliates.
(j) There are no understandings, agreements or undertakings, written or oral, that would prevent any Transferred Company Benefit Plan from being amended or terminated with respect to benefits provided by such Transferred Company Benefit Plan without Liability to the Company, Newco or the Sold Subsidiaries on or at any time after the Closing Date, except, in each case, as required by applicable Law or by Collective Bargaining Agreements.
(k) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (i) entitle any Relevant Service Provider to any severance, separation, change of control, termination, bonus, retention or other additional compensation or benefits; or (ii) cause or result in the accelerated vesting, funding or delivery of, or increase the amount or value of, any compensation or benefit to any Relevant Service Provider. No Transferred Company Benefit Plan provides for any gross-up payment associated with any Tax.
(l) Each Transferred Company Plan that is or was provides deferred compensation subject to the Laws of any jurisdiction outside Section 409A of the United StatesCode complies in form and operation with Section 409A of the Code (and has so complied for the entire period during which Section 409A has applied to such Transferred Company Benefit Plan). None of the transactions contemplated by this Agreement will constitute or result in a violation of Section 409A of the Code.
(m) The Company is the sponsor and administrator of the Pension Plan for Quebec Employees of Xxxxx Corporation, Adhesives & Films Division (the "'548 Plan"). The Company has determined that it is appropriate that the sponsorship and administration of the '548 Plan be assumed by Atlantic Service Company Limited ("Atlantic") to provide for the more efficient management and administration of the '548 Plan. The Company and Atlantic have agreed to the transfer of all the Company's rights, duties, obligations and liabilities under the '548 Plan to Atlantic Service Company Limited and to the assumption by Atlantic Service Company Limited of the Company's rights, duties, obligations and liabilities under the '548 Plan, effective January 1, 2014. The applicable paperwork has been submitted to the Canadian Revenue Agency and Financial Services Commission of Ontario and all other actions required to be taken by the Company with respect to such transfer have been taken. The Company is also the sponsor and administrator of the Pension Plan for Canadian Employees of Xxxxx, Inc., Adhesives and Films Division (the "'160 Plan"). The Company has determined that it is appropriate that the '160 Plan be wound down and the applicable paperwork has been submitted to the Canadian Revenue Agency and Financial Services Commission of Ontario and all other actions required to be taken by the Company with respect to such wind-down have been taken.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Steel Partners Holdings L.P.), Stock Purchase Agreement (Rogers Corp), Stock Purchase Agreement (Handy & Harman Ltd.)
Employee Benefit Plans. (a) First South has disclosed in Section 3.10(a4.15(a) of the Company First South Disclosure Schedule contains a correct Memorandum, and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has delivered or made available to Parent complete and correct Carolina Financial prior to the execution of this Agreement, (i) copies of the following documents with respect to each material Company Employee Benefit Plan currently adopted, maintained by, sponsored in whole or in part by, or contributed or required to be contributed to by any First South Entity or any ERISA Affiliate thereof for the benefit of employees, former employees, retirees, directors, independent contractors, or their respective dependents, spouses, or other beneficiaries or under which employees, retirees, former employees, directors, independent contractors, or their respective dependents, spouses, or other beneficiaries are eligible to participate (each, a “First South Benefit Plan,” and material Company collectively, the “First South Benefit ArrangementPlans”) and (ii) a list of each Employee Benefit Plan that is not identified in (i) above and in connection with which any First South Entity or any ERISA Affiliate thereof has or reasonably could have any obligation or Liability. Any of the First South Benefit Plans which is an “employee pension benefit plan,” as that term is defined in ERISA Section 3(2), is referred to herein as a “First South ERISA Plan.”
(b) First South has delivered or made available to Carolina Financial prior to the extent applicable: execution of this Agreement (i) all plan documentstrust agreements or other funding arrangements for all Employee Benefit Plans, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions all determination letters, rulings, opinion letters, information letters, or advisory opinions issued by the United States Internal Revenue Service (“IRS”), the United States Department of all material non-written agreements relating to Labor (“DOL”) or the Pension Benefit Guaranty Corporation (“PBGC”) during this calendar year or any such plan or arrangement; of the preceding three calendar years, (iii) Form 5500 filings for any filing or documentation (whether or not filed with the last three IRS) where corrective action was taken in connection with the IRS EPCRS program set forth in Revenue Procedure 2013-12, as modified (3) yearsor its predecessor or successor rulings), including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results annual reports or returns, audited or unaudited financial statements, actuarial reports, and valuations prepared for any Employee Benefit Plan for the last current plan year and the three (3) preceding plan years; , (v) the most recent summary plan description descriptions for each First South Benefit Plan and summaries of any material modifications thereto; , and (vi) all material notices correspondence from or other communications received from to the IRS, Department of LaborDOL, or PBGC regarding any other Governmental Authority on First South Benefit Plan received or after January 1, 2014; (vii) required notices sent during this calendar year or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesany of the preceding three calendar years.
(bc) Each Qualified First South Benefit Plan is in material compliance with the terms of such First South Benefit Plan, in material compliance with the applicable requirements of the Code, in material compliance with the applicable requirements of ERISA, and in material compliance with any and all other applicable Laws. Each First South ERISA Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letterletter or opinion from the IRS or, or is in the subject of alternative, appropriately relies upon a favorable advisory or opinion letter as or advisory letter issued to its qualification, issued a prototype plan or volume submitter under which the First South ERISA Plan has been adopted and First South is not aware of any circumstances likely to result in revocation of any such favorable determination letter. First South has not received any communication (written or unwritten) from any Governmental Authority questioning or challenging the compliance of any First South Benefit Plan with applicable Laws. No First South Benefit Plan is currently being audited by any Governmental Authority for compliance with applicable Laws or has been audited with a determination by any Governmental Authority that the Internal Revenue Service First South Benefit Plan failed to comply with applicable Laws.
(the “IRS”d) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, andThere has been no material written or, to the knowledge First South’s Knowledge, oral representation or communication with respect to any aspect of the Company, no act or omission in First South Benefit Plans made to employees of the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered First South which is not in all material respects in accordance with its the written or otherwise preexisting terms and with all applicable Lawsprovisions of such plans. Neither First South nor, including ERISAto the Knowledge of First South, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company any administrator or fiduciary of any First South Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any agent of any of its Subsidiaries is liable the foregoing) has engaged in any transaction, or acted or failed to act in any manner, which could subject First South or Carolina Financial to any direct or indirect Liability (by indemnity or otherwise) for breach of any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor fiduciary, co-fiduciary, or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual duty under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension PlanERISA. There are no current unresolved claims or contingent Liabilities that could reasonably be expected to be imposed upon disputes under the Company terms of, or any in connection with, the First South Benefit Plans other than claims for benefits which are payable in the ordinary course of its Subsidiaries business and no action, proceeding, prosecution, inquiry, hearing, or investigation has been commenced with respect to any Pension First South Benefit Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)for benefits.
(e) Except as All First South Benefit Plan documents and annual reports or returns, audited or unaudited financial statements, actuarial valuations, summary annual reports, and summary plan descriptions issued with respect to the First South Benefit Plans are correct and complete in all material respects, and to the extent applicable, have been timely filed with the IRS or the DOL, and distributed to participants of the First South Benefit Plans (to the extent required by Law), and there have been no material misstatements or omissions in the information set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Codetherein.
(f) Except To the First South’s Knowledge, no “Party in Interest” (as set forth on defined in ERISA Section 3.10(f3(14)) or “Disqualified Person” (as defined in Code Section 4975(e)(2)) of the Company Disclosure Schedule, no Company any First South Benefit Plan has engaged in any nonexempt “Prohibited Transaction” (described in Code Section 4975(c) or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under ERISA Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws406).
(g) Neither the Company No First South Entity nor any of its Subsidiaries ERISA Affiliates has, within six (6) years prior or ever has had, any obligation or Liability in connection with, any plan that is or was subject to the date of this Agreement, maintained, sponsored, Code Section 412 or been required to contribute to any “multiple employer welfare arrangement” as defined in ERISA Section 3(40) 302 or Title IV of ERISA.
(h) The Company Benefit Plans No material Liability under Title IV of ERISA has been or is expected to be incurred by any First South Entity or any ERISA Affiliate thereof, and Company Benefit Arrangements have no event has occurred that could reasonably result in Liability under Title IV of ERISA being incurred by any First South Entity or any ERISA Affiliate thereof with respect to any ongoing, frozen, terminated, or other single-employer plan of any First South Entity or the single-employer plan of any ERISA Affiliate. Except as may arise in connection with the transactions contemplated by this Agreement, there has been documented and administered in accordance with no “reportable event,” within the meaning of ERISA Section 409A 4043, for which the 30-day reporting requirement has not been waived by any ongoing, frozen, terminated, or other single-employer plan of the Code in all material respectsFirst South or of an ERISA Affiliate.
(i) Neither the Company nor Except as required under Part 6 of ERISA or Code Section 4980B, no First South Entity has any material Liability or obligation for retiree or post-termination of employment or services health or life benefits under any of its Subsidiaries maintains the First South Benefit Plans, or other plan or arrangement, and there are no restrictions on the rights of such First South Entity to amend or terminate any and all such retiree or post-termination of employment or services health or benefit plans or arrangements without incurring any Liability. No Tax under Code Sections 4980B or 5000 has maintained been incurred with respect to any First South Benefit Plan, or other plan or arrangement, and no circumstance exists which could give rise to such Taxes.
(j) Except as disclosed in Section 4.15(j) of the First South Disclosure Memorandum, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment for or related to individual services (including severance, unemployment compensation, “excess parachute payment” as defined under Code Section 280G, or otherwise) becoming due from any First South Entity to any employee, officer, director or independent contractor under any First South Benefit Plan or otherwise, (ii) increase any benefits otherwise payable under any First South Benefit Arrangement covering Plan, or (iii) result in any acceleration of the time of payment or vesting of any such benefit, or any benefit under any life insurance owned by any First South Entity or the rights of any First South Entity in, to or under any insurance on the life of any current or former officer, director, or employee of any First South Entity, or change any rights or obligations of any First South Entity with respect to such insurance.
(k) Section 4.15(k) of the Company First South Disclosure Memorandum sets forth preliminary calculations, based on assumptions set forth therein, of the following: (i) the amount of all payments and benefits to which each individual set forth on such First South Disclosure Memorandum is entitled to receive, pursuant to all employment, salary continuation, bonus, change in control, and all other agreements, plans and arrangements, in connection with a termination of employment before or following, or otherwise in connection with or contingent upon, the transactions contemplated under this Agreement (for the avoidance of doubt, excluding payments or benefits in respect of vested equity awards) (each such total amount in respect of each such individual, the “Change in Control Benefit”), other than the payment any such individual shall otherwise be entitled to receive as a gross-up payment in respect of its Subsidiaries that any excise tax imposed on the individual pursuant to Section 4999 of the Code as calculated pursuant to the applicable agreement (any each such payment, a “Gross-Up Payment”); (ii) the amount of any Gross-Up Payment payable to each such individual; and (iii) the aggregate amount of all Change in Control Benefits and Gross-Up Payments.
(l) No First South Benefit Plan is or was subject has been funded by, associated with, or related to a “voluntary employee’s beneficiary association” within the Laws meaning of any jurisdiction outside Section 501(c)(9) of the United States.Code, a “welfare benefit fund” within the meaning of Section 419 of the Code, a “qualified asset account” within the meaning of Section 419A of the Code or a “multiple employer welfare arrangement” within the meaning of Section 3(40)
Appears in 3 contracts
Samples: Merger Agreement (Carolina Financial Corp), Merger Agreement (First South Bancorp Inc /Va/), Merger Agreement (Carolina Financial Corp)
Employee Benefit Plans. (ai) Section 3.10(a) of the Company Such Party's Disclosure Schedule contains a correct and complete list of all material Company written bonus, vacation, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock and stock option plans, all employment or severance contracts, all medical, dental, disability, health and life insurance plans, all other employee benefit and fringe benefit plans, contracts or arrangements and any applicable "change of control" or similar provisions in any plan, contract or arrangement maintained or contributed to by it or any of its Subsidiaries for the benefit of officers, former officers, employees, former employees, directors, former directors, or the beneficiaries of any of the foregoing (collectively, "Compensation and Benefit Plans Plans").
(ii) True and material Company complete copies of its Compensation and Benefit Arrangements. The Company has Plans, including, but not limited to, any trust instruments and/or insurance contracts, if any, forming a part thereof, and all amendments thereto have been made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; other party.
(iii) Form 5500 filings for Except as provided in Section 6.13 of the last three Company Disclosure Schedule, the Merger and the other transactions contemplated by this Agreement (3including any stockholder approval of the Merger and the employment and election of the directors under Section 2.3) years, including all schedules thereto, annual report, financial statements will not be treated as a "Change in Control" under any Compensation and any related actuarial reports; Benefit Plan of the Company or its Subsidiaries.
(iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description Each of its Compensation and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement Plans has been administered in all material respects in accordance with the terms thereof. All "employee benefit plans" within the meaning of Section 3(3) of ERISA, other than "multiemployer plans" within the meaning of Section 3(37) of ERISA ("Multiemployer Plans"), covering employees or former employees of it and its terms and Subsidiaries (its "Plans"), to the extent subject to ERISA, are in material compliance with all applicable Laws, including ERISA, the Code, the Patient Protection Age Discrimination in Employment Act and Affordable Care Act other applicable laws. Each Compensation and Benefit Plan of it or its Subsidiaries which is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (“ACA”"Pension Plan") and which is intended to be qualified under Section 401(a) of the Health Insurance Portability Code has received a favorable determination letter from the Internal Revenue Service, and Accountability Actit is not aware of any circumstances reasonably likely to result in the revocation or denial of any such favorable determination letter. With respect There is no pending or, to each Company Benefit Plan and Company Benefit Arrangementits knowledge, (i) no non-exempt transactions prohibited by Code Section 4975 threatened litigation or ERISA Section 406 have occurred and (ii) no act governmental audit, examination or omission has occurred that could reasonably be expected investigation relating to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse EffectPlans.
(cv) Neither the Company nor any No material liability under Title IV of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored ERISA has been or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be is expected to be imposed upon the Company incurred by it or any of its Subsidiaries with respect to any ongoing, frozen or terminated "single-employer plan", within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them, or the single-employer plan of any entity which is considered one employer with it under Section 4001(a)(15) of ERISA or Section 414 of the Code (an "ERISA Affiliate"). Neither it nor any of its Subsidiaries presently contributes to a Multiemployer Plan, nor have they contributed to such a plan within the past five calendar years. No notice of a "reportable event", within the meaning of Section 4043 of ERISA for which the 30-day reporting requirement has not been waived, has been required to be filed for any Pension Plan maintained of it or any of its Subsidiaries or by an any ERISA AffiliateAffiliate within the past 12 months.
(dvi) There are no pending orAll contributions, premiums and payments required to be made under the knowledge terms of any Compensation and Benefit Plan of it or any of its Subsidiaries have been made. Neither any Pension Plan of it or any of its Subsidiaries nor any single-employer plan of an ERISA Affiliate of it or any of its Subsidiaries has an "accumulated funding deficiency" (whether or not waived) within the meaning of Section 412 of the CompanyCode or Section 302 of ERISA. Neither it nor any of its Subsidiaries has provided, threatened Actions (other than routine benefit claims and proceedings with respect or is required to qualified domestic relations orders) relating provide, security to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Pension Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice to any single-employer plan of an audit or examination (or potential audit or examinationERISA Affiliate pursuant to Section 401(a)(29) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(fvii) Except Under each Pension Plan of it or any of its Subsidiaries which is a single-employer plan, as set forth on of the last day of the most recent plan year ended prior to the date hereof, the actuarially determined present value of all "benefit liabilities", within the meaning of Section 3.10(f4001(a)(16) of ERISA (as determined on the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result basis of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G actuarial assumptions contained in the Plan's most recent actuarial valuation) did not exceed the then current value of the Code. No Company Benefit assets of such Plan, and there has been no adverse change in the financial condition of such Plan (with respect to either assets or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Lawsbenefits) since the last day of the most recent Plan year.
(gviii) Neither the Company it nor any of its Subsidiaries hashas any obligations under any Compensation and Benefit Plans to provide benefits, within six including death or medical benefits, with respect to employees of it or its Subsidiaries beyond their retirement or other termination of service other than (6i) years prior to coverage mandated by Part 6 of Title I of ERISA or Section 4980B of the date of this AgreementCode, maintained, sponsored, (ii) retirement or been required to contribute to death benefits under any “multiple employer welfare arrangement” employee pension benefit plan (as defined in under Section 3(403(2) of ERISA), (iii) disability benefits under any employee welfare plan that have been fully provided for by insurance or otherwise, or (iv) benefits in the nature of severance pay.
(hix) The Company Benefit Plans Neither the execution and Company Benefit Arrangements have been documented and administered in accordance with Section 409A delivery of this Agreement nor the consummation of the Code in all material respects.
transactions contemplated hereby will (i) Neither the Company nor result in any of its Subsidiaries maintains payment (including severance, unemployment compensation, golden parachute or has maintained otherwise) becoming due to any Benefit Plan director or Benefit Arrangement covering any current or former employee of the Company it or any of its Subsidiaries that is under any Compensation and Benefit Plan or was subject to otherwise from it or any of its Subsidiaries, (ii) increase any benefits otherwise payable under any Compensation and Benefit Plan, or (iii) result in any acceleration of the Laws time of payment or vesting of any jurisdiction outside of the United Statessuch benefit.
Appears in 3 contracts
Samples: Merger Agreement (Echlin Inc), Merger Agreement (Echlin Inc), Merger Agreement (Dana Corp)
Employee Benefit Plans. (a) Section 3.10(aNo later than thirty (30) Business Days following the date of this Agreement, the Company Disclosure Schedule contains will provide Buyer with a true, complete and correct and complete list of all identifying each material Company Benefit Plans Plan (the “Company Plan List”). Between December 31, 2015 and the date of this Agreement, there has been no material amendment, modification or waiver with respect to any Company Benefit Arrangements. The Plan related to severance or retention.
(b) For each Company has made Plan listed on the Company Plan List, the Company will, no later than thirty (30) Business Days following the date of this Agreement, make available to Parent Buyer true, complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementof, to the extent applicable: , (i) such Company Plan (or, if such Company Plan is not written, a written summary of its material terms) and all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; , (ii) written descriptions all current summary plan descriptions, including any summary of all material non-written agreements relating to any such plan or arrangement; modifications, (iii) Form 5500 the most recent annual report with any required schedules filed with the applicable Governmental Authority with respect to such Company Plan, (iv) the most recent actuarial report or other financial statement relating to such Company Plan, (v) the most recent determination or opinion letter, if any, issued by the applicable Governmental Authority with respect to such Company Plan and any pending request for such a determination or opinion letter, (vi) all material filings for made with any Governmental Authority within the last past three (3) years, including any filings under a government-sponsored amnesty, voluntary compliance or similar program), other than routine filings, (vii) all schedules thereto, annual report, financial statements and material correspondence to or from any related actuarial reports; (iv) nondiscrimination testing results for Governmental Authority received in the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or years with respect to any Company Plan, other communications received from the IRSthan routine correspondence, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesall material administrative service agreements, group annuity contracts, and group insurance contracts currently in effect with respect to each such Company Plan.
(bc) Each Qualified Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Plan has received been maintained in compliance with its terms and all applicable Law, (ii) with respect to the Company Plans, no event has occurred and there exists no condition or set of circumstances in connection with which the Company or any of its Subsidiaries (or, to the knowledge of the Company, any Company Plan fiduciary that is a favorable determination letterCompany Service Provider) is reasonably likely to be subject to any Liability (other than for routine claims for benefits) under the terms of, or is the subject of a favorable advisory with respect to, such Company Plans or opinion letter as to its qualificationapplicable Law, issued (iii) all contributions or other amounts payable by the Internal Revenue Service Company or any of its Subsidiaries pursuant to each Company Plan in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP, (iv) each Company Plan, (A) if intended to qualify for special Tax treatment as of the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections date of this Agreement (including Section 401(a) and 501(a), respectively, of the Code), meets the requirements for such treatment and, to the knowledge of the Company, there are no act or omission in the operation of such plan has occurred existing circumstances that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could would reasonably be expected to have a Material Adverse Effect. Neither affect adversely the qualified status of any such Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement(B) if required to be funded, except book-reserved or secured by an insurance policy, is, as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintainedfully funded, sponsored book-reserved or been required to contribute to any Pension Plan. There are no current secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
(d) Except for matters that would not have or contingent Liabilities that could reasonably be expected to be imposed upon have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company, any Company Plan nor any trustee, administrator or other third-party fiduciary and/or party-in-interest thereof, has, with respect to any Company Plan, engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the Code applies and which would subject, or impose an indemnification obligation on, the Company or any of its Subsidiaries with respect to the Tax or penalty on prohibited transactions imposed by Section 4975 of the Code, and (ii) neither the Company nor any Pension Plan maintained by an ERISA Affiliateof its Subsidiaries has engaged in a transaction that would reasonably be expected to result in a civil penalty under Sections 409 or 502(i) of ERISA.
(de) There are Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Plan is or has at any time been covered by Title IV of ERISA or subject to Section 412 of the Code or Section 302 of ERISA, and neither the Company, any of its Subsidiaries nor any ERISA Affiliate has ever maintained, established, participated in or contributed to, or is or has been obligated to contribute to, or has otherwise incurred any Liability (including any contingent Liability) under a “multiemployer plan” (as such term is defined in Section 3(37) of ERISA) or “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(f) Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the execution and delivery of this Agreement, shareholder or other approval of this Agreement nor the consummation of the Transactions would, either alone or in combination with another event, (i) entitle any employee, director, officer or independent contractor of the Company or any of its Subsidiaries to severance pay or any increase in severance pay, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee, director, officer or independent contractor, (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any benefits under any Company Plan, (iv) otherwise give rise to any Liability under any Company Plan, (v) limit or restrict the right to merge, amend, terminate or transfer the assets of any Company Plan on or following the Acceptance Time, (vi) require a “gross-up,” indemnification for, or payment to any individual for any Taxes imposed under Section 409A or Section 4999 of the Code or any other Tax or (vii) result in the payment of any amount that would, individually or in combination with any other such payment, constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the Code.
(g) Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Action (other than routine claims for benefits) is pending against or involves or, to the knowledge of the Company, is threatened against or threatened to involve, any Company Plan before any Governmental Authority.
(h) Neither the Company nor any Subsidiary of the Company is a party to or has any obligation under any Company Plan or otherwise to compensate, gross-up or indemnify any person for excise Taxes payable pursuant to Section 4999 of the Code or for excise Taxes payable pursuant to Section 409A of the Code. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Plan that is a “nonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) is in material compliance with Section 409A of the Code and the regulations thereunder.
(i) Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Plan which is maintained primarily for the benefit of employees working outside of the United States (A) is in compliance with the applicable Laws relating to such plans in the jurisdictions in which such Company Plan is present or operates and, to the extent relevant, the United States and (B) that is intended to be funded and/or book reserved is fully funded and/or book reserved, as appropriate, to the knowledge of the Company, based upon reasonable actuarial assumptions and (ii) as of the date of this Agreement, there is no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) litigation relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary Plan which is maintained primarily for the benefit of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction employees working outside of the United States.
Appears in 3 contracts
Samples: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
Employee Benefit Plans. (a) Section 3.10(aPart 3.12(a) of the Company Parent Disclosure Schedule contains sets forth a correct and complete list of all material Company Benefit Parent Plans and material Company Benefit Arrangements. The Company Parent Service Provider Agreements in effect as of the date of this Agreement (other than (i) Parent Service Provider Agreements with employees that are terminable at-will by the Parent without a required notice period or severance or change of control pay or benefits, in which case only the form of such Parent Service Provider Agreements will be listed, (ii) individual equity award agreements that do not deviate from the Parent’s standard forms, in which case only such standard forms of equity award agreement will be listed, and (iii) Parent Service Provider Agreements with consultants that are terminable without penalty on not more than thirty (30) days’ notice, in which case only forms of such Parent Service Provider Agreements will be listed, unless any such Parent Service Provider Agreements provides (x) severance or change of control pay or benefits that are, in each case, greater than required by applicable Law or (y) could reasonably obligate the Parent to pay compensation in excess of $50,000 annually).
(b) With respect to each Parent Plan and material Parent Service Provider Agreement (other than those that are materially consistent with a Standard Form IP Agreement), the Parent has made available to Parent Company true and complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, (to the extent applicable: ): (i) each writing constituting a part of any written Parent Plan and Parent Service Provider Agreement and all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto, and all trusts or service agreements relating to the administration and recordkeeping of the Parent Plan or Parent Service Provider Agreement, and written summaries of the material terms of all unwritten Parent Plans and Parent Service Provider Agreements; (ii) written descriptions of the three most recent annual reports (Form 5500 and all material non-written agreements relating to any such plan or arrangementschedules and financial statements attached thereto) as filed; (iii) Form 5500 filings for the last three (3) years, including most recent summary plan description and all schedules thereto, annual report, financial statements and any related actuarial reportssummaries of material modifications; (iv) nondiscrimination testing results for the last three (3) yearsmost recent IRS determination, opinion or advisory letter issued with respect thereto; (v) the most recent summary plan description annual reports, nondiscrimination testing reports and summaries of material modifications theretoactuarial reports; and (vi) all material notices written correspondence given to such Parent Plan or other communications received from Parent Service Provider Agreement or the IRSParent by any Governmental Body (including any foreign Governmental Body responsible for the regulation of such Parent Plan or Parent Service Provider Agreement) during the three years preceding the date of this Agreement relating to such Parent Plan or Parent Service Provider Agreement or provided to any such Entity by the Parent Plan or Parent Service Provider Agreement, Department the Parent during the three years preceding the date of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesthis Agreement.
(bc) Each Qualified Plan has received a favorable determination letterIn all material respects, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit each Parent Plan and each Company Benefit Arrangement Parent Service Provider Agreement has been established, funded, operated, administered in all material respects and maintained in accordance with its terms and in compliance with all applicable Laws, including ERISAthe Code. There are no Legal Proceedings or claims pending, or, to the Knowledge of the Parent, threatened or reasonably anticipated (other than individual claims for benefits payable in the normal operation of the Parent Plan or Parent Service Provider Agreement) with respect to any Parent Plan or Parent Service Provider Agreement. There are no audits, inquiries, investigations or proceedings pending or, to the Knowledge of the Parent, threatened by any Governmental Body with respect to any Parent Plan or Parent Service Provider Agreement. Parent has timely made all contributions, distributions, reimbursements and payments that are due with respect to each Parent Plan and Parent Service Provider Agreement, and all contributions, distributions, reimbursements and payments for any period ending on or before the Closing Date that are not yet due have been made or properly accrued with respect to each Parent Plan and Parent Service Provider Agreement. Each Parent Plan and Parent Service Provider Agreement can be amended, terminated or otherwise discontinued at any time in accordance with its terms, without liability to Company or the Parent (other than ordinary administration expenses and the payment of accrued but unpaid benefits in the ordinary course).
(d) The Parent Plans which are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and which are intended to meet the qualification requirements of Section 401(a) of the Code have received determination, opinion or advisory letters from the IRS on which they may currently rely to the effect that such plans are qualified under Section 401(a) of the Code and the related trusts are exempt from federal income Taxes under Section 501(a) of the Code, respectively, and to the Patient Protection and Affordable Care Act (“ACA”) and Knowledge of the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit ArrangementParent, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission nothing has occurred that could reasonably be expected to have a Material Adverse Effect. Neither adversely affect the Company nor any qualification of its Subsidiaries is liable for any penalty such Parent Plan or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge tax exempt status of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)related trust.
(e) Except No payment or benefit which will or may be made with respect to any “disqualified individual” (as set forth on defined in Code Section 3.10(e280G and the regulations thereunder) in connection or association with the consummation of the Company Disclosure Schedule, no Company Benefit Plan Merger (either alone or Company Benefit Arrangement contains in combination with any provision or is subject to any Law that, other event) will be characterized as a result parachute payment within the meaning of Code Section 280G(b)(2). There is no contract, agreement, plan or arrangement to which the Transactions Parent is bound to provide a gross-up or upon related, concurrent, otherwise reimburse any employee for excise taxes paid pursuant to Section 4999 or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or Section 409A of the Code.
(f) Except as set forth on Section 3.10(f) otherwise required by this Agreement, neither the execution or delivery of this Agreement nor the consummation of the Company Disclosure ScheduleMerger will (either alone or in connection with any other event): (i) result in any payment by the Parent becoming due to any Parent Service Provider, no Company Benefit (ii) increase any amount of compensation or benefits otherwise payable under any Parent Plan or Company Benefit Arrangement contains any provision or is subject to any Law thatParent Service Provider Agreement, as a (iii) result in the acceleration of the Transactions time of payment, funding or upon relatedvesting (other than such accelerated vesting as may occur in the course of terminating any qualified retirement plans )of any payments or benefits under any Parent Plan or Parent Service Provider Agreement, concurrent(iv) require any contribution or payment to fund any obligation under any Parent Plan or Parent Service Provider Agreement, or subsequent employment termination, would require (v) limit the right to amend or provide terminate any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Parent Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable LawsParent Service Provider Agreement.
(g) Neither No Parent Plan or Parent Service Provider Agreement is, and the Company Parent does not have nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, has it ever sponsored, or maintained contributed to, been required to contribute to or had or has any obligations or liability (current or contingent) under or with respect to any plan that is or was (i) subject to Section 302 or Title IV of ERISA or Section 412 of the Code (including any “defined benefit plan” within the meaning of Section 3(35) of ERISA), (ii) a “multiemployer plan” within the meaning of Section 3(37) of ERISA, (iii) any “multiple employer plan” within the meaning of Section 413 of the Code, or (iv) any “multiple employer welfare arrangement” as defined in within the meaning of Section 3(40) of ERISA. The Parent has no current or contingent liability or obligation as a consequence of at any time being considered a single employer under Section 414 of the Code with any other Person.
(h) The Company Benefit Plans No Parent Plan or Parent Service Provider Agreement provides death, medical, dental, vision, life insurance or other welfare benefits beyond termination of service or retirement, other than coverage mandated by Law, and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of neither the Code in all material respectsParent nor Parent ERISA Affiliates has made a written or oral representation promising the same to any Parent Service Provider.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Each Parent Plan or Benefit Arrangement covering any current or former employee Parent Service Provider Agreement providing for deferred compensation that constitutes a “nonqualified deferred compensation plan” (as defined in Section 409A of the Company or any Code) is, and has been, established, administered and maintained in compliance with the requirements of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside Section 409A of the United StatesCode.
Appears in 3 contracts
Samples: Merger Agreement (Rafael Holdings, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Employee Benefit Plans. (a) Section 3.10(aSchedule 3.17(a) hereto sets forth a complete list of each written and binding oral profit-sharing, pension, severance, thrift, savings, incentive, change of control, employment, retirement, bonus, deferred compensation, group life and health insurance, and other employee benefit plan, agreement, arrangement or commitment, which is maintained, contributed to (including arrangements that involve merely forwarding employee payroll deductions) or required to be contributed to by the Company, any of its Subsidiaries or ERISA Affiliates or with respect to which the Company, any of its Subsidiaries or ERISA Affiliates may have any liability (all of which are hereinafter referred to as the "Benefit Plans"). Neither the Company, nor any of its Subsidiaries or any ERISA Affiliates has any formal commitment, or intention communicated to employees, to create any additional Benefit Plan or make any material amendment or modification to any existing Benefit Plan.
(b) With respect to each of the Benefit Plans, the Company Disclosure Schedule contains a has delivered to the Purchasers true, correct and complete list copies of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies each of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementdocuments, to the extent if applicable: (i) all plan documentsdocuments (including all amendments and modifications thereof) and in the case of binding oral Benefit Plans, a written description thereof, and in either case all related agreements including the trust documentsagreement and amendments thereto, insurance contracts, service provider agreements and amendments theretoinvestment management agreements; (ii) written descriptions of the last three filed Form 5500 series and all material non-written agreements relating to any such plan or arrangementschedules thereto, as applicable; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent current summary plan description descriptions and summaries of all material modifications thereto; (viiv) the three most recent audited financial statements and actuarial valuation reports, as applicable; (v) for the last three years, all material notices or other communications received from correspondence with the IRSInternal Revenue Service, the Department of Labor, or the Pension Benefit Guaranty Corporation and any other Governmental Authority on regarding the operation or after January 1, 2014; (vii) required notices or other written communications to employeesthe administration of any Benefit Plan; and (viiivi) employee manuals any Form 5310 or handbooks containing personnel or employee relations policiesForm 5330 filed with the Internal Revenue Service.
(bc) Each Qualified Benefit Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service been operated and administered (the “IRS”i) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and (ii) in material compliance with all applicable LawsRequirements of Law including, including but not limited to, ERISA and the Code. Each Benefit Plan which is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and which is intended to be qualified under Section 401(a) of the Code and each related trust which is intended to be qualified under Section 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service and to the Knowledge of the Company, there are no circumstances that are reasonably likely to result in such Pension Plan or related trust failing to be so qualified. There is no pending or, to the Knowledge of the Company, threatened audit by any Governmental Authority, litigation or other proceeding relating to any of the Benefit Plans, any fiduciary thereof or service provider thereto, nor, to the Knowledge of the Company, is there any reasonable basis for any of the foregoing to be initiated. No Claim with respect to the administration or the investment of the assets of any Benefit Plan (other than routine claims for benefits) is pending or, to the Knowledge of the Company, threatened. The Company has not engaged in a transaction with respect to any Benefit Plan that, assuming the taxable period of such transaction expired as of the date hereof, could subject the Company or any Benefit Plan to material Taxes or penalties imposed by either Section 4975 of the Code or Section 502(i) of ERISA. No action has been taken with respect to any of the Benefit Plans to either terminate any of the Benefit Plans or to cause distributions, other than in the ordinary course of business to participants under such Benefit Plans.
(d) None of the Benefit Plans is subject to Section 412 of the Code, the Patient Protection and Affordable Care Act (“ACA”Section 302 of ERISA or Title IV of ERISA or is a "multiemployer plan" as defined in Section 3(37) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effectof ERISA. Neither the Company nor any of its Subsidiaries or ERISA Affiliates has at any time within the six-year period ending on the date hereof maintained or contributed to, and has not been obligated to contribute to, any plan subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA or such a multiemployer plan.
(e) Each Pension Plan that is liable not intended to be qualified under Section 401(a) of the Code is (i) exempt from Parts 2, 3 and 4 of Title I of ERISA as an unfunded plan that is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, as described in Sections 201(2), 301(a)(3) and 401(a)(l) of ERISA; and (ii) either (1) has complied and continues to comply with all reporting and disclosure requirements of Part 1 of Title I of ERISA, or (2) has satisfied the alternative method for such compliance set forth in 29 C.F.R. § 2520.104-23.
(f) All insurance premiums under any insurance policy related to a Benefit Plan, all contributions (including all employer contributions and employee salary reduction contributions), and all liabilities and expenses of the Company in respect of any Benefit Plan for any penalty period up to and including the Closing Date have been made, paid, or excise taxes assessable under ACA. Each individual classified as an independent contractor accrued and booked on or before the Closing Date, and, to the Knowledge of the Company, with respect to any such insurance policy or premium payment obligation, neither the Company nor any of its Subsidiaries or ERISA Affiliates is subject to a retroactive rate adjustment, loss sharing arrangement or other non-employee classification actual or contingent liability. There are no unfunded obligations under any Benefit Plan that are not fully reflected on the Financial Statements.
(g) Each Benefit Plan which is a "group health plan" within the meaning of Section 5000(b)(l) of the Code and Section 607(1) of ERISA has been administered in compliance with, and the Company and each of its Subsidiaries has otherwise complied in all respects with, (i) the requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder; (ii) the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations promulgated thereunder; and (iii) the Medicare Secondary Payor Provisions of Section 1862 of the Social Security Act and the regulations promulgated thereunder.
(h) No Benefit Plan is a Retiree Welfare Plan. To the Knowledge of the Company, no communications have been made to participants with respect to guaranteeing benefits under any Benefit Plan.
(i) The consummation of any of the transactions contemplated by the Transaction Documents will not, either alone or in combination with any other event (including but not limited to the termination of any individual's employment within a fixed period of time following such consummation) (x) entitle any employee, director or consultant to severance pay, unemployment compensation or any other payment, (y) accelerate the time of payment or vesting or increase the amount of payment with respect to any compensation due to any employee, director or consultant or (z) result in any payment which could constitute an "excess parachute payment" within the meaning of Section 280G of the Code.
(j) All persons to whom the Company or any of its Subsidiaries or ERISA Affiliates has made payments for the performance of services during the six-year period ending on the Closing Date have been properly classified as employees or non-employees for purposes of income and employment withholding Taxes and coverage under and participation in all of the Benefit Plans, and benefit accrual under each no individual who has performed services for the Company or any of its Subsidiaries or ERISA Affiliates has been improperly excluded from participation in any Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Plan. Neither the Company nor any of its Subsidiaries hasor ERISA Affiliates, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to has any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries liability with respect to any Pension Plan maintained by an ERISA Affiliateemployee leased from another employer.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(hk) The Company Benefit Plans has not incurred any liability or obligation under the Worker Adjustment and Company Benefit Arrangements have been documented Retraining Notification Act, and administered in accordance with Section 409A of the Code in all material respects.
regulations promulgated thereunder (i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company "WARN Act"), or any of its Subsidiaries that is similar state or was subject to the Laws of any jurisdiction outside of the United Stateslocal law which remains unsatisfied.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Local Matters Inc.), Stock Purchase Agreement (Local Matters Inc.), Stock Purchase Agreement (Local Matters Inc.)
Employee Benefit Plans. (a) Section 3.10(aPart 2.15(a) of the Company Disclosure Schedule contains sets forth a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Service Provider Agreements in effect as of the date of this Agreement (other than (i) Company Service Provider Agreements with employees that are terminable at-will by the Company without a required notice period or severance or change of control pay or benefits, in which case only the form of such Company Service Provider Agreements will be listed, (ii) individual equity award agreements that do not deviate from the Company’s standard forms, in which case only such standard forms of equity award agreement will be listed, and (iii) Company Service Provider Agreements with consultants that are terminable without penalty on not more than thirty (30) days’ notice, in which case only forms of such Company Service Provider Agreements will be listed, unless any such Company Service Provider Agreements provides (x) severance or change of control pay or benefits that are, in each case, greater than required by applicable Law or (y) could reasonably obligate the Company to pay compensation in excess of $50,000 annually).
(b) With respect to each Company Plan and material Company Service Provider Agreement (other than those that are materially consistent with a Standard Form IP Agreement), the Company has made available to Parent true and complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, (to the extent applicable: ): (i) each writing constituting a part of any written Company Plan and Company Service Provider Agreement and all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto, and all trusts or service agreements relating to the administration and recordkeeping of the Company Plan or Company Service Provider Agreement, and written summaries of the material terms of all unwritten Company Plans and Company Service Provider Agreements; (ii) written descriptions of the three most recent annual reports (Form 5500 and all material non-written agreements relating to any such plan or arrangementschedules and financial statements attached thereto) as filed; (iii) Form 5500 filings for the last three (3) years, including most recent summary plan description and all schedules thereto, annual report, financial statements and any related actuarial reportssummaries of material modifications; (iv) nondiscrimination testing results for the last three (3) yearsmost recent IRS determination, opinion or advisory letter issued with respect thereto; (v) the most recent summary plan description annual reports, nondiscrimination testing reports and summaries of material modifications theretoactuarial reports; and (vi) all material notices written correspondence given to such Company Plan or other communications received from Company Service Provider Agreement or the IRSCompany by any Governmental Body (including any foreign Governmental Body responsible for the regulation of such Company Plan or Company Service Provider Agreement) during the three years preceding the date of this Agreement relating to such Company Plan or Company Service Provider Agreement or provided to any such Entity by the Company Plan or Company Service Provider Agreement, Department the Company during the three years preceding the date of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesthis Agreement.
(bc) Each Qualified Plan has received a favorable determination letterIn all material respects, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each each Company Benefit Plan and each Company Benefit Arrangement Service Provider Agreement has been established, funded, operated, administered in all material respects and maintained in accordance with its terms and in compliance with all applicable Laws, including ERISA, the Code. There are no Legal Proceedings or claims pending, or, to the Patient Protection Knowledge of the Company, threatened or reasonably anticipated (other than individual claims for benefits payable in the normal operation of the Company Plan or Company Service Provider Agreement) with respect to any Company Plan or Company Service Provider Agreement. There are no audits, inquiries, investigations or proceedings pending or, to the Knowledge of the Company, threatened by any Governmental Body with respect to any Company Plan or Company Service Provider Agreement. Company has timely made all contributions, distributions, reimbursements and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With payments that are due with respect to each Company Benefit Plan and Company Benefit ArrangementService Provider Agreement, and all contributions, distributions, reimbursements and payments for any period ending on or before the Closing Date that are not yet due have been made or properly accrued with respect to each Company Plan and Company Service Provider Agreement. Each Company Plan and Company Service Provider Agreement can be amended, terminated or otherwise discontinued at any time in accordance with its terms, without liability to Parent or the Company (iother than ordinary administration expenses and the payment of accrued but unpaid benefits in the ordinary course).
(d) no non-The Company Plans which are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and which are intended to meet the qualification requirements of Section 401(a) of the Code have received determination, opinion or advisory letters from the IRS on which they may currently rely to the effect that such plans are qualified under Section 401(a) of the Code and the related trusts are exempt transactions prohibited by Code from federal income Taxes under Section 4975 or ERISA Section 406 have occurred 501(a) of the Code, respectively, and (ii) no act or omission to the Knowledge of the Company, nothing has occurred that could reasonably be expected to have a Material Adverse Effect. Neither adversely affect the qualification of such Company nor any of its Subsidiaries is liable for any penalty Plan or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge tax exempt status of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)related trust.
(e) Except No payment or benefit which will or may be made with respect to any “disqualified individual” (as set forth on defined in Code Section 3.10(e280G and the regulations thereunder) in connection or association with the consummation of the Company Disclosure Schedule, no Company Benefit Plan Merger (either alone or Company Benefit Arrangement contains in combination with any provision or is subject to any Law that, other event) will be characterized as a result parachute payment within the meaning of Code Section 280G(b)(2). There is no contract, agreement, plan or arrangement to which the Transactions Company is bound to provide a gross-up or upon related, concurrent, otherwise reimburse any employee for excise taxes paid pursuant to Section 4999 or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or Section 409A of the Code.
(f) Except as set forth on Section 3.10(f) otherwise required by this Agreement, neither the execution or delivery of this Agreement nor the consummation of the Merger will (either alone or in connection with any other event): (i) result in any payment by the Company Disclosure Schedulebecoming due to any Company Service Provider, no (ii) increase any amount of compensation or benefits otherwise payable under any Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law thatService Provider Agreement, as a (iii) result in the acceleration of the Transactions time of payment, funding or upon related, concurrent, vesting (other than such accelerated vesting as may occur in the course of terminating any qualified retirement plans )of any payments or subsequent employment termination, would require or provide benefits under any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA Service Provider Agreement, (iv) require any contribution or other applicable Lawspayment to fund any obligation under any Company Plan or Company Service Provider Agreement, or (v) limit the right to amend or terminate any Company Plan or Company Service Provider Agreement.
(g) Neither No Company Plan or Company Service Provider Agreement is, and the Company does not have nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, has it ever sponsored, or maintained contributed to, been required to contribute to or had or has any obligations or liability (current or contingent) under or with respect to any plan that is or was (i) subject to Section 302 or Title IV of ERISA or Section 412 of the Code (including any “defined benefit plan” within the meaning of Section 3(35) of ERISA), (ii) a “multiemployer plan” within the meaning of Section 3(37) of ERISA, (iii) any “multiple employer plan” within the meaning of Section 413 of the Code, or (iv) any “multiple employer welfare arrangement” as defined in within the meaning of Section 3(40) of ERISA. The Company has no current or contingent liability or obligation as a consequence of at any time being considered a single employer under Section 414 of the Code with any other Person.
(h) The No Company Benefit Plans Plan or Company Service Provider Agreement provides death, medical, dental, vision, life insurance or other welfare benefits beyond termination of service or retirement, other than coverage mandated by Law, and neither the Company Benefit Arrangements have been documented and administered in accordance with Section 409A of nor Company ERISA Affiliates has made a written or oral representation promising the Code in all material respectssame to any Company Service Provider.
(i) Neither the Each Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee Company Service Provider Agreement providing for deferred compensation that constitutes a “nonqualified deferred compensation plan” (as defined in Section 409A of the Company or any Code) is, and has been, established, administered and maintained in compliance with the requirements of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside Section 409A of the United StatesCode.
Appears in 3 contracts
Samples: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Employee Benefit Plans. (a) Section 3.10(a) of Schedule 4.16 to the Company Disclosure Schedule Letter contains a correct true and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material sponsored, maintained, contributed to or required to be contributed to by the Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for within the last three (3) calendar years, including all schedules thereto, annual report, financial statements . Each Company Benefit Plan currently in effect is identified as a "current plan" on the Company Disclosure Letter and any related actuarial reports; (iv) nondiscrimination testing results for special tax status enjoyed by such plan is noted on the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesCompany Disclosure Letter. There are no oral Company Benefit Plans.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan identified on the Company Disclosure Letter, the Company has heretofore delivered or made available to Parent true and Company Benefit Arrangement, complete copies of (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred the plan documents and any amendments thereto (or, if the plan is not written, a written description thereof), (ii) any related trust or other funding vehicle, (iii) annual reports required to be filed with any Governmental Entity with respect to such plan, actuarial reports, funding and financial information returns and statements for the past three years, (iv) all contracts with any parties providing services or insurance to such plan, (v) all material internal memoranda regarding such plans, (vi) copies of material correspondence with all Governmental Entities, plan summaries or summary plan descriptions, summary annual reports, booklets and personnel manuals and any other reports or summaries required under Applicable Benefit Laws, (vii) the most recent determination letter received from the Internal Revenue Service with respect to each such plan intended to qualify under Section 401 of the Code, if applicable, and (viii) such other documentation with respect to any Company Benefit Plan as is reasonably requested by Parent.
(c) The Company has maintained all employee data necessary to administer each Company Benefit Plan, including data required to be maintained under Sections 107 and 209 of ERISA, and such data are materially true and correct and are maintained in a usable form.
(d) No Company Benefit Plan or ERISA Affiliate Plan is or was subject to Title IV of ERISA or Section 412 of the Code, nor is any Company Benefit Plan or ERISA Affiliate Plan a "multiemployer pension plan," as defined in Section 3(37) of ERISA, or subject to Section 302 of ERISA. None of the Company, an ERISA Affiliate or a predecessor in interest of any of them has or has had an obligation to make contributions or reimburse another employer, either directly or indirectly, including through indemnification or otherwise, for making contributions to a plan that is or was subject to Title IV of ERISA. The Company has not incurred, and no act or omission has occurred that facts exist which reasonably could reasonably be expected to result in, Liability to the Company as a result of a termination, withdrawal or funding waiver with respect to any ERISA Affiliate Plan or Company Benefit Plan that is subject to Title IV of ERISA.
(e) Each Company Benefit Plan has been established, registered, qualified, invested, operated and administered in all respects in accordance with its terms, in compliance with all Applicable Benefit Laws and in accordance with all understandings, written or oral, between the Company and its current or former employees, directors, officers, consultants, independent contractors, contingent workers or leased employees, as applicable, except for such instances of noncompliance as would not have a Company Material Adverse Effect. Neither The Company has not incurred, and the Company has no Knowledge of any facts that exist which reasonably could be expected to result in, any Liability to the Company with respect to any Company Benefit Plan or any ERISA Affiliate Plan, including any Liability, tax, penalty or fee under ERISA, the Code or any Applicable Benefit Law (other than to pay premiums, contributions or benefits in the ordinary course).
(f) All obligations regarding each Company Benefit Plan have been satisfied, and there are no outstanding defaults or violations by any party to any Company Benefit Plan, except where the failure to so satisfy or where any default or violation would not have a Company Material Adverse Effect. There are no Taxes, penalties or fees owing under any Company Benefit Plan that would have a Company Material Adverse Effect.
(g) The Company has no Knowledge of any facts or circumstances that exist that are likely to adversely affect the tax-exempt status of a Company Benefit Plan that is intended to be tax-exempt. Further, each Company Benefit Plan intended to be "qualified" within the meaning of Section 401(a) of the Code and each trust maintained thereunder that is intended to be exempt from taxation under Section 501(a) of the Code has received a favorable determination or other letter indicating that it is so qualified or exempt, as the case may be.
(h) The assets of each Company Benefit Plan are reported in good faith at their fair market value on the financial statements of each such plan.
(i) Other than those Company Benefit Plans listed in the Company Disclosure Letter and as specifically described therein, no Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for current or former employees, directors, officers, consultants, independent contractors, contingent workers or leased employees (or any of their dependents, spouses or beneficiaries) of the Company or any predecessor in interest of such Company for periods extending beyond their retirement or other termination of service, other than continuation coverage mandated by any Applicable Benefit Law and only to the extent required under such law.
(j) All contributions or premiums required to be made by the Company under the terms of each Company Benefit Plan or by Applicable Benefit Laws have been made in a timely fashion in accordance with Applicable Benefit Laws and the terms of the Company Benefit Plan, except for failures that would not have a Company Material Adverse Effect. Contributions or premiums will be paid by the Company for the period up to the Effective Time in the ordinary course of business. Each Company Benefit Plan is fully funded or fully insured on both an ongoing and termination or wind-up basis, pursuant to the actuarial assumptions set forth in the Company Disclosure Letter.
(k) No insurance policy or any other contract or agreement affecting any Company Benefit Plan requires or permits a retroactive increase in premiums or payments due thereunder. The level of insurance reserves under each insured Company Benefit Plan is reasonable and sufficient to provide for all incurred but unreported claims.
(l) There have been no improper withdrawals, applications or transfers of assets from any Company Benefit Plan or the trusts or other funding media relating thereto which would have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries agents has been properly classified for purposes in breach of participation and benefit accrual under each any material fiduciary obligation with respect to the administration of any Company Benefit Plan and Company Benefit Arrangementor the trusts or other funding media relating thereto, except as could for failures that would not reasonably be expected to have a Company Material Adverse Effect.
(cm) Neither The Company has the right under the terms of each Company Benefit Plan and under Applicable Benefit Law to amend, revise, merge or terminate such plan (or its participation in such plan) or transfer the assets of such plan to another arrangement, plan or fund at any time exclusively by action of the Company, and no additional contributions would be required to properly effect such termination.
(n) The execution, delivery and performance of, and consummation of the transactions contemplated by, this Agreement will not (i) entitle any current or former employee, director, officer, consultant, independent contractor, contingent worker or leased employee (or any of their dependents, spouses or beneficiaries) of the Company nor to severance pay, unemployment compensation or any of its Subsidiaries has, within six (6) years prior to the date of other payment except as provided in this Agreement, maintained, sponsored (ii) accelerate the time of payment or been required to contribute to vesting (except for outstanding stock options) or (iii) increase the amount of compensation due any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliatesuch individual.
(do) The Company has not made any payments, is not obligated to make any payments, and is not a party to any agreement that under certain circumstances could obligate the Company to make any payments that will not be deductible for federal income tax purposes by reason of Section 280G of the Code or make (or be deemed to make) any payments that may subject the recipient to excise tax pursuant to Section 4999 of the Code.
(p) There are no pending or, to the knowledge of the Company's Knowledge, threatened Actions (or anticipated claims, investigations, examinations, audits or other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to or actions by, against, involving or on behalf of any Company Benefit Plans Plan by any current or former employee, director, officer, consultant, independent contractor, contingent worker or leased employee (or any of their dependents, spouses or beneficiaries) of the Company or any predecessor in interest covered under such Company Benefit Arrangements (including Plan, by any such claim against any fiduciary of Governmental Entities or otherwise involving any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Laborother than routine claims for benefits).
(eq) Except as set forth on Section 3.10(e) of All individuals who are or were performing consulting or other services for the Company Disclosure Scheduleare or were at all times correctly classified as either "independent contractors" or "employees," as the case may be, no Company Benefit Plan or Company Benefit Arrangement contains except for any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law classifications that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Codenot have a Company Material Adverse Effect.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 3 contracts
Samples: Merger Agreement (Ivillage Inc), Merger Agreement (Promotions Com Inc), Merger Agreement (Ivillage Inc)
Employee Benefit Plans. (a) Section 3.10(a4.18(a) of the Company Disclosure Schedule contains a complete and correct and complete list of all material Company Benefit Plans employee benefit plans, fringe benefit plans or other similar arrangements which pertain to any Employee (including (i) any profit-sharing, deferred compensation, bonus, stock option, stock purchase, pension, retainer, consulting, retirement, severance, welfare or incentive plan, agreement or arrangement, including plans that are multiemployer plans within the meaning of Section 3(37) of ERISA (“Multiemployer Plans”), (ii) any plan, agreement or arrangement providing for “fringe benefits” or perquisites, including transportation and material Company Benefit Arrangementsmeals subsidies and benefits relating to company automobiles, clubs, vacation, child care, sabbatical, sick leave, medical, dental, hospitalization, life insurance and other types of insurance, or (iii) any other “employee benefit plan” (within the meaning of Section 3(3) of ERISA, whether or not such plan is, in fact, regulated by ERISA) (collectively, the “Employee Plans”). The Company has made available Sellers have delivered to Parent complete Buyer true and correct copies of each Employee Plan (along with all amendments thereto) (including written summaries of oral Employee Plans). With respect to each Employee Plan, each Seller is in compliance with the following documents applicable provisions of the Code, ERISA, and all other Laws and Orders applicable with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to all such Employee Plans. Each Seller is in compliance with the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions terms of all material non-written agreements relating Employee Plans and has performed all of its obligations under all Employee Plans including the full payment when due of all amounts required to be made as contributions thereto or otherwise. As of the Closing, there will be no accrued unpaid vacation or sick leave balances for any such plan Employees. Neither Seller nor any entity under “common control” with a Seller (within the meaning of Section 4001 of ERISA) is required to contribute or arrangement; (iii) Form 5500 filings for the last three (3) yearshas, including all schedules thereto, annual report, financial statements and at any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after time since January 1, 2014; (vii) required notices 2008, ever contributed to or other written communications had an obligation to employees; and (viii) employee manuals contribute to any Multiemployer Plan or handbooks containing personnel or employee relations policiesto any pension plan subject to Title IV of ERISA with respect to any Employee.
(b) Each Qualified Plan has received a favorable determination letter, or is Neither the subject execution and delivery of a favorable advisory or opinion letter as to its qualification, issued by this Agreement nor the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, consummation of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, transactions contemplated hereby will: (i) no non-exempt transactions prohibited by Code result in any payment becoming due to any director, manager, officer or any Employee of any Seller or any entity under “common control” with a Seller (within the meaning of Section 4975 or ERISA Section 406 have occurred and 4001 of ERISA); (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor increase any of its Subsidiaries is liable for benefits otherwise payable under any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Employee Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or ; (iii) forgive result in any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A acceleration of the Code.
(f) Except as set forth on Section 3.10(f) time of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute vesting of any benefits under any Employee Plan; or (iv) result, separately or in the aggregate with any other event, in an “excess parachute payment” under within the meaning of Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Grilled Cheese Truck, Inc.), Asset Purchase Agreement (Grilled Cheese Truck, Inc.), Asset Purchase Agreement (Grilled Cheese Truck, Inc.)
Employee Benefit Plans. (ai) Section 3.10(a) of the The Company Disclosure Schedule contains a correct true and complete list of all material each deferred compensation and each bonus or other incentive compensation, stock purchase, stock option and other equity compensation or ownership plan, program, agreement or arrangement, each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(1) of ERISA); each profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); each employment, retention, consulting, termination or severance agreement; and each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by the Company or by any trade or business, whether or not incorporated (a "Company ERISA Affiliate"), that, together with the Company would be deemed a "single employer" within the meaning of Section 4001(b) of ERISA, or to which the Company or a Company ERISA Affiliate is party, whether written or oral, for the benefit of any employee or director or former employee or director (or any of their respective beneficiaries), of the Company or any of its Subsidiaries (the "Company Benefit Plans and material Plans").
(ii) With respect to each Company Benefit Arrangements. The Plan, the Company has heretofore delivered or made available to Parent true and complete and correct copies of each of the following documents documents: (A) a copy of the Company Benefit Plan and any amendments thereto; (B) a copy of the two most recent annual reports on Internal Revenue Service Form 5500 and actuarial reports, if required under ERISA; (C) a copy of the most recent Summary Plan Description (including supplements) required under ERISA with respect thereto; (D) if the Company Benefit Plan is funded through a trust or any third party funding vehicle, a copy of the trust or other funding agreement and the latest financial statements thereof and all related agreements; and (E) the most recent determination letter received from the Internal Revenue Service with respect to each material Company Benefit Plan and material Company Benefit Arrangement, intended to qualify under Section 401(a) of the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; Code.
(iii) Form 5500 filings No liability under Title IV or Section 302 of ERISA has been incurred by the Company or any Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Parent or any Company ERISA Affiliate of incurring any such liability, other than liability for premiums due the last three PBGC (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; which premiums have been paid when due).
(iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified No Company Benefit Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, andhas, to the knowledge of Parent, engaged in a "prohibited transaction" (as defined in Section 4975 of the CompanyCode or Section 406 of ERISA).
(v) With respect to each Company Benefit Plan subject to Title IV of ERISA (the "Title IV Company Benefit Plans"), no act or omission the present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding purposes in the operation most recent actuarial report prepared by such plan's actuary with respect to such plan did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(vi) No Title IV Company Benefit Plan or any trust established thereunder has occurred that could adversely affect its qualified statusincurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV Company Benefit Plan ended prior to the Closing Date nor has there been any application for waiver of the minimum funding standards imposed by Section 412 of the Code. All contributions required to be made with respect to any Company Benefit Plan on or prior to the Closing Date have been timely made or are reflected on the balance sheet.
(vii) No Company Benefit Plan is a "multiemployer plan", as defined in Section 3(37) of ERISA, nor is any Company Benefit Plan a plan described in Section 4063(a) of ERISA.
(viii) Each Company Benefit Plan and each Company Benefit Arrangement has been operated and administered in all material respects in accordance with its terms and with all applicable Lawslaw, including ERISA, but not limited to ERISA and the Code, the Patient Protection rules and Affordable Care Act (“ACA”) regulations thereunder and the Health Insurance Portability all applicable collective bargaining agreements and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected intended to be imposed upon "qualified" under Section 401(a) of the Company or any of its Subsidiaries with respect Code has received a favorable determination letter from the Internal Revenue Service to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to such effect. To the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with there is no fact, condition or set of circumstances existing that could adversely affect such favorable determination. To the knowledge of the Company, there are no investigations pending in respect to qualified domestic relations orders) relating to of any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)governmental entity.
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Apco Argentina Inc/New)
Employee Benefit Plans. (a) Schedule 4.15(a) attached hereto contains a true and correct list of each material employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, stock appreciation right or other stock-based incentive, severance, change-in-control, or termination pay, hospitalization or other medical, retiree medical, disability, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, retention, or retirement plan, program, agreement or arrangement and each other material employee benefit plan, program, agreement or arrangement, sponsored, maintained or contributed to or required to be contributed to by Seller, or by any trade or business, whether or not incorporated (an “ERISA Affiliate”), that together with Seller would be deemed a “single employer” within the meaning of Section 3.10(a4001(b)(1) of ERISA, for the Company Disclosure Schedule contains a correct and complete list benefit of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies any Employee or former employee of the following documents with respect to Business, whether formal or informal and whether legally binding or not (the “Plans”). Schedule 4.15(a) attached hereto includes each material Company Benefit Plan of the Plans, if any, that is an “employee welfare benefit plan” or “employee pension benefit plan” as such terms are defined in Sections 3(1) and material Company Benefit Arrangement3(2) of ERISA (such plans collectively, the “ERISA Plans”). Except as disclosed in Schedule 4.15(a) attached hereto, none of Seller nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional Plan or modify or change any existing Plan that would affect any Employee or former employee or director of the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating Business in a manner which could reasonably be expected to any such plan constitute or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesresult in a Material Adverse Effect.
(b) Each Qualified With respect to each of the Plans, Seller shall make available to Buyer upon Buyer’s request true and correct copies of each of the following documents, as applicable:
(i) a copy of the Plan has received document, including all amendments thereto, for each written Plan or a favorable determination letter, written description of any Plan that is not otherwise in writing;
(ii) a copy of the annual report or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service Form 5500 Series, if required under ERISA, with respect to each ERISA Plan for the last two Plan years ending prior to the Execution Date; and
(iii) all contracts relating to the Plans with respect to which Buyer may have any liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements.
(c) To the Knowledge of Seller, no liability under Title IV of ERISA has been incurred by Seller or any ERISA Affiliate since the effective date of ERISA that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any liability under such Title, other than liability for premiums due to the Pension Benefit Guaranty Corporation (the “IRSPBGC”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectivelywhich payments have been or will be made when due.
(d) To the Knowledge of Seller, none of Seller, any ERISA Affiliate, any of the ERISA Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which Seller or any ERISA Affiliate could be subject to any material liability for either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975, 4976 or 4980B of the Code.
(e) No Plan is a “multi-employer pension plan”, andas such term is defined in Section 3(37) of ERISA.
(f) To the Knowledge of Seller, to the knowledge each of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement Plans has been operated and administered in all material respects in accordance with its terms applicable laws, including, but not limited to, ERISA and with all applicable Laws, including ERISA, the Code, .
(g) Each of the Patient Protection and Affordable Care Act (ERISA Plans that is an “ACA”employee pension benefit plan” as defined in Section 3(2) and of ERISA that is intended to qualify under Section 401(a) of the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, Code has (i) no non-exempt transactions prohibited by Code Section 4975 received a favorable determination letter that such Plan satisfied the requirements of the Tax Reform Act of 1986 and the statutes referenced in IRS Announcement 2001 104 and any amendments thereto or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have submitted a Material Adverse Effect. Neither request for a determination within the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectapplicable remedial amendment period.
(ch) Neither the Company nor any of its Subsidiaries hasNo Plan provides benefits, within six (6) years prior to the date of this Agreementincluding, maintainedwithout limitation, sponsored death or been required to contribute to any Pension Plan. There are no current medical benefits whether or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries not insured, with respect to any Pension Plan maintained Employee or former employee of Seller or any ERISA Affiliate after retirement or other termination of service other than (i) coverage mandated by an ERISA Affiliateapplicable laws or (ii) benefits the full direct cost of which are borne by the Employee or former employee or beneficiary thereof.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(ei) Except as set forth on Section 3.10(ein Schedule 4.15(i) attached hereto, the consummation of the Company Disclosure Scheduletransactions contemplated by this Agreement will not, no Company Benefit Plan either alone or Company Benefit Arrangement contains in combination with any provision or is subject to any Law thatother event, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increaseentitle any Employee or former employee, accelerate officer, director or vest consultant of Seller or any ERISA Affiliate to severance pay, unemployment compensation or benefitany other similar termination payment, or (ii) require severanceaccelerate the time of payment or vesting, termination or retention payments increase the amount of, or (iii) forgive otherwise enhance, any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject benefit due to any Law that would promise such employee, officer, director or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Codeconsultant.
(fj) Except as set forth in Schedule 4.15(j) attached hereto, there are no pending, or to the Knowledge of Seller, threatened or anticipated claims by or on Section 3.10(f) behalf of the Company Disclosure Scheduleany Plan, no Company Benefit by any employee or beneficiary under any such Plan or Company Benefit Arrangement contains otherwise involving any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit such Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Lawsthan routine claims for benefits.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Golf Trust of America Inc), Asset Purchase Agreement (Gta-Ib, LLC)
Employee Benefit Plans. (a) Each Plan and each Benefit Program (defined in SECTION 5.18(b)(iv) below) is listed on SCHEDULE 5.18 hereto. No Plan or Benefit Program is or has been (i) covered by Title IV of ERISA, (ii) subject to the minimum funding requirements of Section 3.10(a412 of the Code or (iii) a "multi-employer plan" as defined in Section 3(37) of ERISA, nor has Seller contributed to, or ever had any obligation to contribute to, any multi-employer plan. Each Plan and Benefit Program intended to be qualified under Section 401(a) of the Company Disclosure Schedule contains Code is designated as a correct tax-qualified plan on SCHEDULE 5.18 and complete list of all material Company is so qualified. No Plan or Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies Program provides for any retiree health benefits for any employees or dependents of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or Seller other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) than as required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension PlanCOBRA. There are no current claims pending with respect to, or contingent Liabilities that could reasonably be expected to be imposed upon the Company under, any Plan or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There Benefit Program, other than routine claims for benefits, and there are no disputes or litigation pending or, to the knowledge of Seller, threatened, with respect to any such Plans or Benefit Programs.
(b) Seller has heretofore delivered to Purchaser true and correct copies of the Companyfollowing, threatened Actions if any:
(i) each Plan and each Benefit Program listed on SCHEDULE 5.18, all amendments thereto as of the date hereof and all current summary plan descriptions provided to employees regarding the Plans and Benefit Programs;
(ii) each trust agreement and annuity contract (or any other funding instruments) pertaining to any of the Plans or Benefit Programs, including all amendments to such documents to the date hereof;
(iii) each management or employment contract or contract for personal services and a complete description of any understanding or commitment between Seller and any officer, consultant, director, employee or independent contractor of Seller; and
(iv) a complete description of each other plan, policy, contract, program, commitment or arrangement providing for bonuses, deferred compensation, retirement payments, profit sharing, incentive pay, commissions, hospitalization or medical expenses or insurance or any other benefits for any officer, consultant, director, annuitant, employee or independent contractor of Seller as such or members of their families (other than routine benefit claims directors' and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans officers' liability policies), whether or Company Benefit Arrangements not insured (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labora "BENEFIT PROGRAM").
(ec) Each Plan and Benefit Program has been maintained and administered in compliance with its terms and in accordance with all applicable laws, rules and regulations. Seller has no commitment or obligation to establish or adopt any new or additional Plans or Benefit Programs or to increase the benefits under any existing Plan or Benefit Program.
(d) Except as set forth on Section 3.10(e) in SCHEDULE 5.18, neither the execution and delivery of this Agreement, nor the consummation of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would transactions contemplated hereby will (i) increaseresult in any payment to be made by Seller, accelerate or vest any compensation or benefitincluding, (ii) require without limitation, severance, termination or retention payments or unemployment compensation, golden parachute (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under defined in Section 280G of the Code. No Company Benefit ) or otherwise, becoming due to any employee of Seller, or (ii) increase any benefits otherwise payable under any Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United StatesProgram.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cornell Corrections Inc), Asset Purchase Agreement (Cornell Corrections Inc)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule contains a correct All benefit and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementcompensation plans, to the extent applicable: policies or arrangements (i) all plan documents, trust documents, insurance contracts, covering current or former employees or service provider agreements and amendments thereto; (ii) written descriptions providers of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act Company Bank or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for (such current and former employees and other service providers collectively, the “Company Employees”), (ii) covering current or former directors of Company or any penalty of its Subsidiaries or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the (iii) with respect to which Company or any of its Subsidiaries has been properly classified any liability or contingent liability (including liability arising from affiliation under Sections 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA), including, but not limited to, “employee benefit plans” within the meaning of Section 3(3) of ERISA, health/welfare, change-of-control, cafeteria, fringe benefit, deferred compensation, defined benefit plan, defined contribution plan, stock option, stock purchase, stock appreciation rights, stock-based, incentive, bonus plans, severance, retirement plans, pension plans, “multiemployer plans” (as defined in Section 3(37) of ERISA) and other similar plans, contracts, policies or arrangements whether or not subject to ERISA, whether written or unwritten (and for purposes of participation and benefit accrual under each any unwritten plan, a description thereof) (all such plans, contracts, policies or arrangements are collectively referred to as the “Company Benefit Plan Plans”), are identified and described in Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Disclosure Schedule 3.16(a). None of Company nor any of its Subsidiaries hashas any stated plan, intention or commitment to establish any new plan, contract, policy or arrangement that would be a Company Benefit Plan or to materially modify any Company Benefit Plan except as required by applicable Law.
(b) Company has provided Buyer with true and complete current copies of all Company Benefit Plans including, but not limited to, any trust instruments and insurance contracts forming a part of any Company Benefit Plan and all amendments thereto, summary plan descriptions and summary of material modifications, the three most recent annual reports (IRS Form 5500 and all schedules and financial statements attached thereto), if any, required under ERISA or the Code in connection with each Company Benefit Plan, material communications within the past six (6) years to or from the IRS, the Pension Benefit Guaranty Corporation or any other Governmental Authority with respect to the Company Benefit Plans, all current material written contracts relating to each Company Benefit Plan, including administrative service agreements and group insurance contracts, and the most recent IRS determination, opinion, notification and advisory letters, if any, with respect thereto.
(c) All reports, notices and information required to be filed with or delivered to the United States Department of Labor, the IRS or plan participants with respect to the Company Benefit Plans have been timely filed or delivered. Each of the Company Benefit Plans intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS that such plan was so qualified, as of the date set forth in the letter and nothing has occurred with respect to the operation of any such plan which, either individually or in the aggregate, would impair such qualification or result in the imposition of any material liability, penalty or tax under ERISA or the Code.
(d) None of Company nor any of its Subsidiaries or ERISA Affiliates (or their predecessors) has within the past six (6) years maintained, sponsored or contributed to (or been obligated to contribute to) a plan subject to Title IV of ERISA or Section 412 of the Code, including any “multiemployer plan” within the meaning of Section 3(37) of ERISA. None of Company nor its Subsidiaries or ERISA Affiliates has incurred within the past six (6) years, and there are no circumstances under which any could reasonably incur, any liability with respect to Title IV of ERISA or Section 412 of the Code.
(e) All contributions required to be made with respect to all Company Benefit Plans have been timely made or have been reflected on the consolidated financial statements of Company to the extent required to be reflected under applicable accounting principles. All amounts due and payable under any Company Benefit Plan have been timely paid to participants. All general ledger entries and required tax withholdings have been made in connection with the Supplemental Executive Retirement Plans set forth in Company Disclosure Schedule 5.11(g).
(f) Each of the Company Benefit Plans has been maintained, in all material respects, in accordance with the terms and all provisions of all applicable laws and regulations. None of the Company Benefit Plans provides continuing welfare benefits after the termination of employment (other than (i) as required by Section 4980B of the Code or similar state law, (ii) benefits through the end of the month of termination of employment, or (iii) life insurance benefits attributable to a death on or prior to the date of termination of employment, and all at the former employee’s own expense or subsidized pursuant to applicable law), and the Company has complied in all material respects with the notice and continuation requirements of Section 4980B of the Code and the regulations thereunder. The Company is not currently liable and has not previously in the past six (6) years incurred any liability for any tax or penalty arising under Chapter 43 of Subtitle D of the Code or Section 502 of ERISA, and no facts or event exists which could reasonably give rise to any such liability. Company may amend or terminate any such Company Benefit Plan at any time without incurring any material liability thereunder for future benefits coverage at any time after such termination, other than ordinary administrative expenses typically incurred in a termination event and the obligation for ordinary benefits accrued prior to the termination of such plan.
(g) Except as set forth in Company Disclosure Schedule 3.16(g), neither the execution of this Agreement, maintainedshareholder approval of this Agreement or consummation of any of the transactions contemplated by this Agreement (other than as initiated by Buyer in accordance with Section 5.11) will (i) entitle any Company Employee to severance pay or any increase in severance pay upon any termination of employment, sponsored (ii) accelerate the time of payment or been required vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Company Benefit Plans, (iii) result in any breach or violation of, or a default under, any of the Company Benefit Plans, (iv) result in any payment that would be an excess “parachute payment” to contribute a “disqualified individual” as those terms are defined in Section 280G of the Code for which a deduction would be disallowed by reason of Section 280G of the Code, without regard to any Pension Plan. There are no current whether such payment is reasonable compensation for personal services performed or contingent Liabilities that could reasonably be expected to be imposed upon performed in the future, and without regard to payments made or promised by Buyer after the Effective Time except to the extent disclosed to the Company in accordance with Section 5.04(c), or (v) limit or restrict the right of Company or any of its Subsidiaries with respect or, after the consummation of the transactions contemplated hereby, Buyer or any of its Subsidiaries, to merge, amend or terminate any Pension Plan maintained of the Company Benefit Plans unless otherwise agreed to by an ERISA AffiliateBuyer.
(dh) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan has resulted or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) would, if operated in accordance with its terms, result in the material payment by any Governmental Authority (including the IRS and the Department participant therein of Labor).
(e) Except as set forth interest or additional tax on nonqualified deferred compensation under Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) . None of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior has agreed to the date of this Agreement, maintained, sponsored, reimburse or been required to contribute to indemnify any “multiple employer welfare arrangement” as defined participant in Section 3(40) of ERISA.
(h) The a Company Benefit Plans Plan for any tax, including the interest and Company Benefit Arrangements have been documented and administered the penalties specified in accordance with Section 409A of the Code that may be currently due or triggered in all material respectsthe future.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Eagle Bancorp Montana, Inc.), Merger Agreement (Eagle Bancorp Montana, Inc.)
Employee Benefit Plans. (a) All employee compensation, incentive, fringe or benefit plans, programs, policies, commitments, agreements or other arrangements (whether or not set forth in a written document and including, without limitation, all "employee benefit plans" within the meaning of Section 3.10(a3(3) of ERISA) covering any active or former employee, director or consultant of NetIQ ("NetIQ Employee" which shall for this purpose mean an employee of MCS or any Affiliate (as defined below)), any subsidiary of NetIQ or any trade or business (whether or not incorporated) which is an Affiliate, or with respect to which NetIQ has or, to its knowledge, may in the future have liability, are listed in Section 3.12(a) of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit ArrangementsNetIQ Schedules (the "NetIQ Plans"). The Company NetIQ has made provided or will make available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicableMCS: (i) correct and complete copies of all plan documentsdocuments embodying each NetIQ Plan including (without limitation) all amendments thereto, all related trust documents, insurance contracts, service provider and all material written agreements and amendments theretocontracts relating to each such NetIQ Plan; (ii) written descriptions of the most recent annual reports (Form Series 5500 and all material non-written agreements relating to any such plan schedules and financial statements attached thereto), if any, required under ERISA or arrangementthe Code in connection with each NetIQ Plan; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries together with the summary(ies) of material modifications thereto, if any, required under ERISA with respect to each NetIQ Plan; (iv) all IRS determination, opinion, notification and advisory letters; (v) all material correspondence to or from any governmental agency relating to any NetIQ Plan; (vi) all material forms and related notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014required by COBRA; (vii) required notices or other written communications to employeesthe most recent discrimination tests for each NetIQ Plan; (viii) the most recent actuarial valuations, if any, prepared for each NetIQ Plan; (ix) if the NetIQ Plan is funded, the most recent annual and periodic accounting of the NetIQ Plan assets; and (viiix) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as all communication to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) NetIQ Employees relating to any Company Benefit Plans or Company Benefit Arrangements (including NetIQ Plan and any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Scheduleproposed NetIQ Plan, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject in each case relating to any Law thatamendments, as a result terminations, establishments, increases or decreases in benefits, acceleration of the Transactions payments or upon related, concurrentvesting schedules, or subsequent employment termination, other events which would (i) increase, accelerate or vest result in any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject material liability to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company NetIQ or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United StatesAffiliate.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Mission Critical Software Inc), Agreement and Plan of Reorganization (Netiq Corp)
Employee Benefit Plans. (ai) Section 3.10(a3.3(j)(i) of the Company Disclosure Schedule contains Letter sets forth each Benefit Plan whether or not such Benefit Plan is or is intended to be (A) arrived at through collective bargaining or otherwise, (B) funded or unfunded, (C) covered or qualified under the Internal Revenue Code, ERISA, or other applicable law, (D) set forth in an employment agreement, consulting agreement, individual award agreement, or (E) written or oral.
(ii) Except as set forth in Section 3.3(j)(ii) of the Company Disclosure Letter, Business Bank has made available to Seacoast prior to the date of this Agreement correct and complete copies of the following documents: (A) all Benefit Plan documents (and all amendments thereto), (B) all trust agreements or other funding arrangements for its Benefit Plans (including insurance or group annuity Contracts), and all amendments thereto, (C) with respect to any Benefit Plans or amendments, the most recent determination letters, as well as a correct and complete list copy of each pending application for a determination letter (if any), and all material Company rulings, opinion letters, information letters, or advisory opinions issued by the Internal Revenue Service, the United States Department of Labor, or the Pension Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementGuaranty Corporation after December 31, to the extent applicable: 1994, (iD) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last past three (3) years, annual reports or returns, audited or unaudited financial statements, actuarial valuations and reports, and summary annual reports prepared for any Benefit Plans, including all schedules theretobut not limited to the annual report on Form 5500 (if such report was required), annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (vE) the most recent summary plan description and summaries for each Benefit Plan for which a summary plan description is required by Law, including any summary of material modifications thereto; , (viF) in the case of Benefit Plans that are Rights or individual award agreements under the Business Bank Stock Plan, a representative form of award agreement together with a list of persons covered by such representative form and the number of shares of Business Bank Common Stock covered thereby, (G) all documents evidencing any agreements or arrangements with service providers relating to Benefit Plans, (H) all material notices or other communications received correspondence and/or notifications from the IRS, Department of Labor, or any other Governmental Authority on or after January 1administrative service with regard to any Benefit Plan, 2014; (vii) required notices or other written communications to employees; and (viiiI) employee manuals or handbooks containing personnel or employee relations policiesnondiscrimination testing data and results for the two most recently completed plan years (if applicable) with regard to any Benefit Plan.
(biii) Each Qualified Plan has received a favorable determination letter, or is All of the subject Benefit Plans have been administered in compliance with their terms and with the applicable provisions of a favorable advisory or opinion letter as to its qualification, issued by ERISA and the Internal Revenue Service Code and (the “IRS”if applicable) to the effect in a manner that such plan is qualified complies with and the trust related thereto is exempt from federal income taxes tax or other penalty under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and Act, in combination with the Health Insurance Portability Care and Accountability Reconciliation Act of 2010 (together, the “Affordable Care Act”); and any other applicable Laws. With respect All Benefit Plans that are employee pension benefit plans, as defined in Section 3(2) of ERISA, that are intended to each Company Benefit Plan be tax qualified under Section 401(a) of the Internal Revenue Code, have received a current, favorable determination letter from the Internal Revenue Service or have filed a timely application therefor, and Company Benefit Arrangement, (i) there are no non-exempt transactions prohibited by Code Section 4975 circumstances that will or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably result in revocation of any such favorable determination letter or negative consequences to an application therefor, and each trust created under any such Benefit Plans has been determined to be expected to have a Material Adverse Effect. Neither exempt from Tax under Section 501(a) of the Company Internal Revenue Code and neither Business Bank nor any of its Subsidiaries is liable for aware of any penalty circumstance that will or excise taxes assessable under ACAcould reasonably result in revocation of such exemption. Each individual classified as an independent contractor or other non-employee classification by the Company or any With respect to each of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit ArrangementPlans, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date Knowledge of this AgreementBusiness Bank, maintained, sponsored no event has occurred that will or been required could reasonably give rise to contribute a loss of any intended Tax consequences under the Internal Revenue Code or to any Pension PlanTax under Section 511 of the Internal Revenue Code. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge Knowledge of the CompanyBusiness Bank, threatened Actions Litigation, governmental audits or investigations or other proceedings, or participant claims (other than routine benefit claims and proceedings for benefits in the normal course of business) with respect to qualified domestic relations ordersany Benefit Plan.
(iv) relating Neither Business Bank nor any of its Subsidiaries has engaged in a transaction with respect to any Company of their Benefit Plans that would subject Business Bank or Company Benefit Arrangements (including any such claim against of its Subsidiaries to a Tax or penalty imposed by either Section 4975 of the Internal Revenue Code or Section 502(i) of ERISA. Neither Business Bank nor any of its Subsidiaries nor any administrator or fiduciary of any such Company of their Benefit Plan Plans (or Company any agent of any of the foregoing) has engaged in any transaction, or acted or failed to act in any manner with respect to any of their Benefit Arrangement)Plans that could subject it to any direct or indirect Liability (by indemnity or otherwise) for breach of any fiduciary, co-fiduciary, or other duty under ERISA. No Company oral or written representation or communication with respect to any aspect of the Benefit Plan Plans of Business Bank or Company Benefit Arrangement has received notice any of an audit its Subsidiaries have been made to employees of Business Bank or examination (any such Subsidiary that is not in conformity with the written or potential audit or examination) by any Governmental Authority (including the IRS otherwise preexisting terms and the Department provisions of Labor)such plans.
(ev) Except as set forth on in Section 3.10(e3.3(j)(v) of the Company Disclosure ScheduleLetter, no Company Benefit Plan none of Business Bank, any Subsidiary or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this AgreementERISA Affiliates thereof has and has never sponsored, maintained, sponsoredcontributed to, or been required obligated under ERISA or otherwise to contribute to any (A) a “defined benefit plan” (as defined in ERISA Section 3(35) or Internal Revenue Code Section 414(j); (B) a “multi-employer plan” (as defined in ERISA Sections 3(37) and 4001(a)(3); (C) a “multiple employer plan” (meaning a plan sponsored by more than one employer within the meaning of ERISA Sections 4063 or 4064 or Internal Revenue Code Section 413(c); or (D) a “multiple employer welfare arrangement” as defined in ERISA Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) ). Neither the Company Business Bank nor any of its Subsidiaries maintains nor any of their ERISA Affiliates have incurred and there are no circumstances under which any could reasonably incur any Liability under Title IV of ERISA or Internal Revenue Code Section 412.
(vi) Except as set forth in Section 3.3(j)(vi) of the Company Disclosure Letter, neither Business Bank nor any of its Subsidiaries nor any of their respective ERISA Affiliates has maintained any incurred current or projected obligations or Liability for post-employment or post-retirement health, medical, surgical, hospitalization, death or life insurance benefits under any of its Benefit Plans, other than with respect to benefit coverage mandated by Internal Revenue Code Section 4980B or other applicable Law.
(vii) Except as set forth in Section 3.3(j)(vii) of the Company Disclosure Letter, no Benefit Plan exists and there are no other Contracts, plans, or arrangements (written or otherwise) covering any Company Group employee that, individually or collectively, as a result of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement (whether alone or in connection with any other event(s)), would reasonably be expected to, (A) result in any material severance pay upon any termination of employment, or (B) accelerate the time of payment or vesting or result in any material payment or material funding (through a grantor trust or otherwise) of compensation or benefits under, materially increase the amount payable, require the security of material benefits under or result in any other material obligation pursuant to, any such Business Bank Plans, contracts, plans, or arrangements. No amounts paid or payable (whether in cash, property or the vesting of property) individually or collectively, as a result of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement (whether alone or in connection with any other event(s), will result in the payment of any amount that would, individually or in combination with any other such payment, result in the loss of a deduction under Internal Revenue Code Section 280G or be subject to an excise tax under Section 4999 of the Internal Revenue Code. Business Bank has made available to Seacoast true and complete copies of 280G calculations (whether or not final) with respect to any disqualified individual, if applicable, in connection with the transactions contemplated by this Agreement.
(viii) Each Benefit Plan that is a “non-qualified deferred compensation plan” (as defined for purposes of Internal Revenue Code Section 409A) is in documentary compliance with, and has been operated and administered in compliance with, Internal Revenue Code Section 409A and the applicable guidance issued thereunder, and no Benefit Plan provides any compensation or benefits which could subject, or have subjected, a covered service provider to gross income inclusion or tax pursuant to Internal Revenue Code Section 409A. Neither Business Bank nor any of its Subsidiaries has any indemnification obligation pursuant to any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company Contract to which Business Bank or any of its Subsidiaries that is a party for any Taxes imposed under Section 4999 or was subject to the Laws of any jurisdiction outside 409A of the United StatesInternal Revenue Code.
(ix) Business Bank does not maintain and has never maintained a supplemental executive retirement plan or any similar plan for directors, officers or employees.
(x) All of the Benefit Plans that constitute compensation arrangements involving officers of Business Bank or the Bank have been approved and administered by Business Bank’s Board of Directors in accordance with all applicable corporate and regulatory requirements.
(xi) Since January 1, 2020, Business Bank has not implemented, in response to COVID-19, any material workforce reductions, terminations, furloughs, reductions in or changes to compensation, benefits or working schedules, or changes to any Benefit Plans.
Appears in 2 contracts
Samples: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Employee Benefit Plans. (a) Section 3.10(a2.10(a) of the Company Disclosure Schedule contains Letter sets forth a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents“employee benefit plans,” as defined in Section 3(3) of ERISA (as defined in Section 8.4), trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions all other currently effective severance pay, salary continuation, bonus, incentive, stock option, retirement, pension, profit sharing or deferred compensation plans, Contracts, programs, funds or arrangements of all material non-written agreements relating to any such plan or arrangement; kind, and (iii) Form 5500 filings for the last three all other employee benefit plans, Contracts, programs, funds or arrangements (3whether written or oral, qualified or nonqualified, funded or unfunded, foreign or domestic, currently effective or terminated) yearsand any trust, including all schedules escrow or similar Contract related thereto, annual reportwhether or not funded, financial statements and in respect of any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries present or former employees, directors, officers, shareholders, consultants or independent contractors of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries (all of the above being hereinafter individually or collectively referred to as “Employee Plan” or “Employee Plans,” respectively). The Company has no liability with respect to any plan, arrangement or practice of the type described in the preceding sentence other than the Employee Plans.
(b) Copies of the following materials have been delivered or made available to Parent: (i) all current and prior (but only to the extent that the Company has any obligations thereunder) plan documents for each Employee Plan or, in the case of an unwritten Employee Plan, a written description thereof, (ii) all determination letters from the Internal Revenue Service (“IRS”) with respect to any of the Employee Plans, (iii) all current and prior summary plan descriptions, summaries of material modifications, annual reports, and summary annual reports with respect to any of the Employee Plans, and (iv) all current and prior (but only to the extent that the Company has obligations thereunder) trust agreements, insurance contracts, and other documents relating to the funding or payment of benefits under any Employee Plan.
(c) Each Employee Plan has been properly classified for purposes maintained, operated and administered in all material respect in compliance with its terms and any related documents or agreements and in compliance in all material respects with all applicable laws. There have been no prohibited transactions or breaches of participation any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Employee Plans that could result in any liability or excise tax under ERISA or the Code being imposed on the Company.
(d) Each Employee Plan intended to be qualified under Section 401(a) of the Code and benefit accrual has been determined by the IRS to be so qualified, and each trust created thereunder has been determined by the IRS to be exempt from tax under each Company Benefit Plan the provisions of Section 501(a) of the Code, and Company Benefit Arrangement, except as nothing has occurred since the date of any such determination that could not reasonably be expected to have a Material Adverse Effectgive the IRS grounds to revoke such determination.
(ce) Neither the Company nor any of its Subsidiaries currently has, within six (6) years prior to and at no time in the date of this Agreementpast has had, maintained, sponsored or been required an obligation to contribute to any Pension Plan. There are no current a “defined benefit plan” as defined in Section 3(35) of ERISA, a pension plan subject to the funding standards of Section 302 of ERISA or contingent Liabilities that could reasonably be expected to be imposed upon Section 412 of the Company Code, a “multiemployer plan” as defined in Section 3(37) of ERISA or any Section 414(f) of its Subsidiaries with respect to any Pension Plan maintained by an the Code or a “multiple employer plan” within the meaning of Section 210(a) of ERISA Affiliateor Section 413(c) of the Code.
(df) No Employee 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 Employee Plan are or at any time have been provided through a voluntary employees’ beneficiary association (within the meaning of subsection 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code).
(g) All contributions, transfers and payments in respect of any Employee Plan, other than transfers incident to an incentive stock option plan within the meaning of Section 422 of the Code, have been or are fully deductible under the Code.
(h) There are is no pending or, to the knowledge of the Company, threatened Actions assessment, complaint, proceeding, or investigation of any kind in any court or government agency with respect to any Employee Plan (other than routine benefit claims for benefits), nor, to the knowledge of the Company, is there any basis that could reasonably be expected to give rise to one.
(i) All (i) insurance premiums required to be paid with respect to, (ii) benefits, expenses, and other amounts due and payable under, and (iii) contributions, transfers, or payments required to be made to, any Employee Plan prior to the Closing Date will have been paid or made on or before their due dates.
(j) With respect to any insurance policy providing funding for benefits under any Employee Plan, (i) there is no liability of the Company or any of its 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 or after the date hereof, and (ii) no insurance company issuing any such policy is in receivership, conservatorship, liquidation or similar proceeding and, to the knowledge of the Company, no such proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)insurer are imminent.
(ek) Except as set forth on Section 3.10(e) No Employee Plan provides benefits, including, without limitation, death or medical benefits, beyond termination of the Company Disclosure Schedule, no Company Benefit Plan service or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would retirement other than (i) increasecoverage mandated by law, accelerate or vest any compensation or benefit, (ii) require severance, termination death or retention payments or (iiiretirement benefits under any Employee Plan that is intended to be qualified under Section 401(a) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(fl) Except as set forth on Section 3.10(f) The Company and its Subsidiaries have reserved all rights necessary to amend or terminate each of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains Employee Plans without the consent of any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Lawsperson.
(gm) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute No Employee Plan provides benefits to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any individual who is not a current or former employee of the Company or any of its Subsidiaries, or the dependents or other beneficiaries of any such current or former employee.
(n) Except for the Company’s Subsidiaries, no other entity or trade or business is, or at any time within the past six years has been, treated, together with the Company, as a single employer under Section 414 of the Code or as a controlled group under Section 4001 of ERISA.
(o) Except as set forth in Section 2.10(o) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, alone or in connection with any other event, (i) result in any material payment (including severance, unemployment compensation or golden parachute) becoming due under any Employee Plan, (ii) materially increase any compensation or benefits (including severance, deferred compensation and equity benefits) otherwise payable under any Employee Plan, (iii) result in the acceleration of the time of payment or vesting of any such benefits to any material extent, or (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Company or any of its Subsidiaries to any Person. Except as set forth in Section 2.10(o) of the Company Disclosure Letter, no benefit or payment under any Employee Plan that is or was subject to “contingent” (within the Laws meaning of any jurisdiction outside Section 280G(b)(2)(i) of the United StatesCode) on this Agreement or the transactions contemplated by this Agreement will, either independently or when aggregated with all other amounts payable to any individual, constitute a “parachute payment” (as defined under Section 280G(b)(2) of the Code). Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated since January 1, 2005 in good faith compliance with Section 409A of the Code and regulatory guidance promulgated thereunder (collectively, “Section 409A”). No nonqualified deferred compensation plan has been “materially modified” (within meaning of Section 409A) at any time after October 3, 2004.
Appears in 2 contracts
Samples: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Employee Benefit Plans. (a) For purposes of this Section 3.10(a3.14, the Subsidiaries shall include any enterprise which, with the Company, forms or formed a controlled group of corporations, a group of trades or business under common control or an affiliated service group, within the meaning of Section 414(b), (c) or (m) of the Code.
(b) All employee benefit plans, programs, arrangements and agreements (whether or not described in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), whether or not written or oral) covering active, former or retired employees of the Company and the Subsidiaries which provide material benefits to such employees, or as to which the Company or any the Subsidiaries has any material liability or material contingent liability, are listed on Section 3.14(b) of the Company Disclosure Schedule contains a correct and complete list of all material Letter (the “Company Benefit Plans and material Company Benefit Arrangements. Plans”).
(c) The Company has made available to Parent a true, correct and complete and correct copies copy of each of the following documents Company Benefit Plans, and all contracts relating thereto, or to the funding thereof, including, without limitation, all trust agreements, insurance contracts, administration contracts, investment management agreements, subscription and participation agreements, and record-keeping agreements, each as in effect on the date hereof. In the case of any Company Benefit Plan that is not in written form, Parent has been supplied with an accurate description of such Company Benefit Plan as in effect on the date hereof. A true, correct and complete copy of the most recent annual report, actuarial report, accountant’s opinion of the plan’s financial statements, summary plan description and Internal Revenue Service determination or opinion letter with respect to each material Company Benefit Plan and material Company Benefit ArrangementPlan, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description schedule of assets (and summaries the fair market value thereof assuming liquidation of any asset which is not readily tradable) held with respect to any funded Company Benefit Plan have been made available to Parent. There have been no material modifications thereto; (vi) all material notices changes in the financial condition in the respective plans from that stated in the annual reports and actuarial reports supplied that have had or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications would reasonably be expected to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policieshave a Material Adverse Effect.
(bd) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each All Company Benefit Plan Plans comply in form and each Company Benefit Arrangement has have been administered in operation in all material respects with all applicable requirements of Law, excluding any deficiencies that have not had and would not reasonably be expected to have a Material Adverse Effect, no event has occurred which will or could cause any such Company Benefit Plan to fail to comply with such requirements, excluding any deficiencies that have not had and would not reasonably be expected to have a Material Adverse Effect, and no notice has been issued by any Governmental Entity questioning or challenging such compliance.
(e) All required employer contributions under any Company Benefit Plan have been made or will be timely made as of the Effective Time or properly reflected on the most recent consolidated balance sheet filed with the Company Financial Statements in accordance with its terms generally accepted accounting principals, except for any deficiencies that have not had and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could would not reasonably be expected to have a Material Adverse Effect. No changes in contributions or benefit levels with respect to any of the Company Benefit Plans have been communicated to employees or are scheduled to occur after the date of this Agreement other than in the ordinary course of business.
(f) To the extent applicable, any Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received or made timely application for a favorable determination or opinion letter from the Internal Revenue Service, and no amendment has been made or action taken that could cause the loss of such qualified status.
(g) No Company Benefit Plan is or has ever been subject to Title IV of ERISA or Section 412 of the Code.
(h) There are no pending or, to the Knowledge of the Company, anticipated material claims against or otherwise involving any of the Company Benefit Plans and no material suit, action or other litigation has been brought against or with respect to any Company Benefit Plan or any of the fiduciaries thereof.
(i) Neither the Company nor any Subsidiary has incurred or reasonably expects to incur any liability under Section 412 of the Code, Section 302 of ERISA or subtitle C or D of Title IV of ERISA with respect to any “single-employer plan,” within the meaning of section 4001(a)(15) of ERISA, currently or formerly sponsored, maintained, or contributed to (or required to be contributed to) by the Company, any of the Subsidiaries or any entity which is considered one employer with the Company under Section 4001 of ERISA.
(j) Neither the Company nor any of its the Subsidiaries has incurred and or reasonably expects to incur any liability under subtitle E of Title IV of ERISA with respect to any “multiemployer plan,” within the meaning of Section 4001(a)(3) of ERISA.
(k) None of the assets of any Company Benefit Plan is liable for invested in employer securities (as defined in Section 407(d)(1) of ERISA) or employer real property (as defined in Section 407(d)(2) of ERISA).
(l) There have been no material “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any penalty Company Benefit Plan.
(m) There have been no acts or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification omissions by the Company or any of its the Subsidiaries has been properly classified which have given rise to or may give rise to any fines, penalties, Taxes or related charges under Section 502 of ERISA or Chapters 43, 47 or 100 of the Code for purposes which the Company or any of participation the Subsidiaries are or may be liable that have not had and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could would not reasonably be expected to have a Material Adverse Effect.
(cn) Neither the Company nor any of its the Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to has any Pension Plan. There are no current liability or contingent Liabilities that could reasonably be expected to be imposed upon the Company or liability for providing, under any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan otherwise, any post-retirement medical or Company Benefit Arrangement has received notice life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS Title I of ERISA and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A 4980B of the Code.
(fo) Except as set forth on Section 3.10(f) of Obligations under the Company Disclosure Schedule, no Benefit Plans are properly reflected in the Company Financial Statements in accordance with GAAP.
(p) Each Company Benefit Plan may be amended or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or terminated without material liability (other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior than with respect to the date payment of this Agreement, maintained, sponsored, or been required benefits in the ordinary course) to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its the Subsidiaries that is at any time and without contravening the terms of such plan, or was subject any Law or agreement. Except as set forth in this Agreement, following the Effective Time, Parent or any of the Subsidiaries (or any successors thereto) may amend or terminate or cause to be amended or terminated any Company Benefit Plan without material liability (other than with respect to the Laws payment of benefits in the ordinary course) to Parent or any jurisdiction outside of the United StatesSubsidiaries (or successors thereto).
Appears in 2 contracts
Samples: Merger Agreement (RCN Corp /De/), Merger Agreement (NEON Communications Group, Inc.)
Employee Benefit Plans. (a) Section 3.10(aSchedule 2.18(a) lists all pension, ---------------- retirement, supplemental retirement, stock option, stock purchase, stock ownership, savings, stock appreciation right, profit sharing, deferred compensation, consulting, bonus, medical, disability, workers' compensation, vacation, group insurance, severance and other employee benefit, incentive and welfare policies, contracts, plans and arrangements, and all trust agreements related thereto, maintained by or contributed to by Seller in respect of any of the Company Disclosure Schedule contains a correct and complete list present or former directors, officers, or other employees of all material Company Benefit Plans and material Company Benefit Arrangementsand/or consultants to Seller (collectively, "Seller Employee Plans"). The Company Seller has made available to Parent complete and correct copies of furnished Buyers with the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicableSeller Employee Plan: (i) a true and complete copy of all plan documentswritten documents comprising such Seller Employee Plan (including amendments and individual agreements relating thereto) or, trust documentsif there is no such written document, insurance contracts, service provider agreements an accurate and amendments theretocomplete description of the Seller Employee Plan; (ii) written descriptions of the most recently filed Form 5500 or Form 5500-C/R (including all material non-written agreements relating to any such plan or arrangementschedules thereto), if applicable; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, most recent financial statements and any related actuarial reports, if any; (iv) nondiscrimination testing results for the last three (3) yearssummary plan description currently in effect and all material modifications thereof, if any; and (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRSIRS determination letter, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesif any.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified All Seller Employee Plans have been maintained and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered operated in all material respects in accordance with its their terms and with the requirements of all applicable Lawsstatutes, including ERISAorders, rules and final regulations, including, without limitation, to the extent applicable, ERISA and the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect All contributions required to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 be made to Seller Employee Plans have been made or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectreserved.
(c) Neither With respect to each of the Company nor Seller Employee Plans which is a pension plan (as defined in Section 3(2) of ERISA) (the "Pension Plans"): (i) each Pension Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined to be so qualified by the IRS and such determination letter may still be relied upon, and each related trust is exempt from taxation under Section 501(a) of the Code; (ii) the present value of all benefits vested and all benefits accrued under each Pension Plan which is subject to Title IV of ERISA did not, in each case, as of the last applicable annual valuation date (as indicated on Schedule 2.18(a)), exceed ---------------- the value of the assets of the Pension Plan allocable to such vested or accrued benefits; (iii) there has been no "prohibited transaction," as such term is defined in Section 4975 of the Code or Section 406 of ERISA, which could subject any of its Subsidiaries hasPension Plan or associated trust, within six (6) years prior to the date of this Agreementor Seller, maintained, sponsored or been required to contribute to any tax or penalty; (iv) no Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company Plan or any of its Subsidiaries trust created thereunder has been terminated, nor has there been any "reportable events" with respect to any Pension Plan maintained by an Plan, as that term is defined in Section 4043 of ERISA Affiliate.
since January 1, 1989; and (dv) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Pension Plan or Company Benefit Arrangementany trust created thereunder has incurred any "accumulated funding deficiency", as such term is defined in Section 302 of ERISA (whether or not waived). No Company Benefit Pension Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except is a "multiemployer plan" as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or that term is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(403(37) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Unified Holdings Inc), Agreement and Plan of Merger (Unified Holdings Inc)
Employee Benefit Plans. (a) Section 3.10(a3.11(a) of the Company AmSurg Disclosure Schedule contains sets forth a correct true and complete list of each material “employee benefit plan” as defined in Section 3(3) of ERISA and any other plan, policy, program, Contract, or arrangement (whether written or oral) providing compensation or other benefits to any current or former director, officer or employee (or to any dependent or beneficiary thereof) of AmSurg or any of its Subsidiaries, in each case that is maintained, sponsored or contributed to by AmSurg or any of its ERISA Affiliates, or under which AmSurg or any of its Subsidiaries has any obligation or liability, whether actual or contingent, including all material Company incentive, bonus, deferred compensation, profit-sharing, pension, retirement, vacation, holiday, sick pay, cafeteria, fringe benefit, medical, disability, retention, severance, termination, change in control, stock purchase, stock option, stock appreciation, phantom stock, restricted stock or other equity-based compensation plans, policies, programs, practices or arrangements (each an “AmSurg Benefit Plans and material Company Plan”). Neither AmSurg, nor to the Knowledge of AmSurg, any other Person, has any express or implied commitment, whether legally enforceable or not, to (i) materially modify, change or terminate any AmSurg Benefit Arrangements. The Company Plan, other than with respect to a modification, change or termination required by ERISA, the Code or the terms of such AmSurg Benefit Plan or (ii) adopt any New Amethyst Benefit Plan.
(b) With respect to each AmSurg Benefit Plan, AmSurg has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementHoldings a current written copy thereof (if any) and, to the extent applicable: (i) all plan documents, any related trust documents, insurance contracts, service provider agreements and amendments theretoagreement; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangementthe most recent IRS determination letter; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries summary of material modifications thereto; (vi) all material notices or other communications received from the IRSmodifications, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viiiiv) employee manuals or handbooks containing personnel or employee relations policiesfor the most recent plan year (A) the Form 5500 and attached schedules and (B) audited financial statements.
(bc) Each Qualified Except as has not had or would not reasonably be expected to have, individually or in the aggregate, an AmSurg Material Adverse Effect, (i) each AmSurg Benefit Plan has been administered in accordance with its terms and all applicable Laws, including ERISA and the Code, and (ii) contributions or payments required to be made under the terms of any of the AmSurg Benefit Plans or related insurance policies have been timely made or, if not yet due, have been properly reflected on the most recent consolidated balance sheet filed or incorporated by reference in the AmSurg SEC Documents.
(d) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, an AmSurg Material Adverse Effect: (i) each AmSurg Benefit Plan which is intended to qualify under Section 401(a) of the Code has either received a favorable determination letter, or is the subject of a favorable advisory letter or opinion letter from the IRS as to its qualificationqualified status, issued by the Internal Revenue Service (the “IRS”) and each trust established in connection with any AmSurg Benefit Plan which is intended to the effect that such plan is qualified and the trust related thereto is be exempt from federal income taxes taxation under Sections 401(aSection 501(a) and 501(a), respectively, of the CodeCode is so exempt, and, and to the knowledge of the Company, AmSurg’s Knowledge no act fact or omission in the operation of such plan event has occurred that could adversely affect its the qualified status. Each Company status of any such AmSurg Benefit Plan and each Company Benefit Arrangement or the exempt status of any such trust, (ii) to AmSurg’s Knowledge there has been administered in all material respects in accordance no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code), other than a transaction that is exempt under a statutory or administrative exemption, with its terms respect to any AmSurg Benefit Plan, and (iii) no Proceeding has been brought, or to the Knowledge of AmSurg is threatened, against or with all applicable Lawsrespect to any AmSurg Benefit Plan, including any audit or inquiry by the IRS or United States Department of Labor (other than for routine benefits claims).
(e) No AmSurg Benefit Plan is a multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA, ) (“Multiemployer Plan”) or other plan subject to Title IV of ERISA or the minimum funding requirements of Section 302 of ERISA or Section 412 of the Code. Except as has not had or would not reasonably be expected to have, individually or in the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangementaggregate, an AmSurg Material Adverse Effect, (i) no non-exempt transactions prohibited by Code Section 4975 during the preceding six (6) years none of AmSurg or any ERISA Section 406 have occurred and Affiliate thereof has maintained, sponsored or contributed to or been required to contribute to a Multiemployer Plan or other pension plan subject to Title IV of ERISA, (ii) no act liability under Title IV of ERISA has been incurred by AmSurg or omission any ERISA Affiliate thereof that has occurred not been satisfied in full, and no condition exists that could reasonably be expected presents a risk to have AmSurg or any ERISA Affiliate thereof of incurring or being subject (whether primarily, jointly or secondarily) to a Material Adverse Effect. Neither the Company nor any liability thereunder and (iii) none of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company AmSurg or any of its Subsidiaries has been properly classified for purposes incurred any material withdrawal liability under Section 4201 of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse EffectERISA.
(cf) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities No amount that could reasonably be expected to be imposed upon received (whether in cash or property or the Company or any vesting of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangementproperty). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions consummation of the Mergers or upon relatedother Transactions, concurrenteither alone or in combination with any other event, by any employee, officer or director of AmSurg or any of its Subsidiaries who is a “disqualified individual” (within the meaning of Section 280G of the Code) could be characterized as an “excess parachute payment” (within the meaning of Section 280G(b)(1) of the Code).
(g) Except as required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or subsequent state law having similar effect, no AmSurg Benefit Plan provides post-employment terminationmedical, would disability or life insurance benefits to any former director, employee or their respective dependents.
(h) Except for the adjustment and assumption of the AmSurg Stock Options and AmSurg RSUs in accordance with Section 2.3, neither the execution of this Agreement nor the consummation of the Mergers or other Transactions, either alone or in combination with any other event, will (i) increaseresult in any payment becoming due to any employee or director or independent contractor of AmSurg or any of its Subsidiaries (including with respect to any bonus, accelerate severance or vest any compensation or benefitchange in control payments), (ii) require severanceincrease or enhance any benefits otherwise payable to any employee or director or independent contractor of AmSurg or any of its Subsidiaries, termination or retention payments or (iii) forgive accelerate the time of payment or vesting or trigger any indebtedness. No Company Benefit Plan payment or Company Benefit Arrangement contains funding (through a grantor trust or otherwise) of compensation or benefits, increase the amount payable or trigger, secure or enhance any provision or is subject other material obligation pursuant to any Law that would promise of the AmSurg Benefit Plans or provide (iv) result in any tax gross ups breach or tax indemnification violation of, or default under Sections 280G any AmSurg Benefit Plan.
(i) There is no agreement, plan, Contract or other arrangement to which AmSurg or, to the Knowledge of AmSurg, any of its Subsidiaries is a party or by which any of them is otherwise bound to compensate any Person in respect of Taxes pursuant to Section 409A or 4999 of the Code.
(fj) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, There is no Company material AmSurg Benefit Plan established or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United StatesStates of America primarily for the benefit of employees of AmSurg or any Subsidiary thereof residing outside the United States of America.
Appears in 2 contracts
Samples: Merger Agreement (Envision Healthcare Holdings, Inc.), Merger Agreement (Amsurg Corp)
Employee Benefit Plans. (a) Section 3.10(a) 3.10 of the Company Disclosure Schedule of Exceptions contains a correct true and complete list of all material each Company Benefit Plans Plan (as defined below). As used herein, the term "Company Plan" means each material employee benefit plan (within the meaning of Section 3(3) of the Employment Retirement Income Security Act of 1974 ("ERISA")), including each "employee pension benefit plan" (as defined in Section 3(2) of ERISA), and each "employee welfare benefit plan" (as defined in Section 3(1) of ERISA), each material employee benefit plan maintained outside the United States, and each other material plan, arrangement or policy (written or oral) to provide benefits, other than salary, as compensation for services rendered, including, without limitation, employment agreements, executive compensation agreements, incentive arrangements, salary continuation, stock option, stock grant or stock purchase rights, phantom rights, deferred compensation, bonus, severance policies or agreements, retention policies or agreements, change in control policies or agreements, fringe benefits or other employee benefits, in each case maintained or sponsored by the Company Benefit Arrangementsor to which the Company contributes to or for which the Company has or may have any liability, contingent or otherwise, either directly or as a result of an ERISA Affiliate, or any other plan, arrangement or policy mandated by applicable Law, for the benefit of any current, former or retired employee, officer, consultant, independent contractor or director of the Company, its Subsidiaries or any ERISA Affiliate (collectively, the "Company Employees"). The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any documents constituting the Company Plans, the three most recently filed Forms 5500 for such plan or arrangement; Company Plans and financial statements attached thereto, all Internal Revenue Service (iiithe "IRS") Form 5500 filings determination letters for the last Company Plans, all notices that were issued within the preceding three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from years by the IRS, Department of Labor, or any other Governmental Authority on or after January 1Entity with respect to the Company Plans, 2014; (vii) required notices or other written communications to employees; and (viii) all employee manuals or handbooks containing personnel or employee relations policies, and all other material documents relating to the Company Plans. For purposes of this Section 3.10, the term Company includes any ERISA Affiliate. The term "ERISA Affiliate" means any person, that together with the Company, is or was at any time treated as a single employer under section 414 of the Code or section 4001 of ERISA and any general partnership of which the Company is or has been a general partner.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been operated and administered in all material respects in accordance with its terms and with all applicable LawsLaw, including including, but not limited to, ERISA and the Code, except for instances of noncompliance that would not have, individually or in the aggregate, a Material Adverse Effect on the Company. All reporting, disclosure and notice requirements under ERISA, the CodeCode and other applicable Laws have been fully and completely satisfied with respect to each Company Benefit Plan, except for instances of noncompliance that would not have, individually or in the Patient Protection and Affordable Care Act (“ACA”) and aggregate, a Material Adverse Effect on the Health Insurance Portability and Accountability ActCompany. With respect to each Company Benefit Plan and Company Benefit ArrangementPlan, (i) there has occurred no non-exempt transactions "prohibited by transaction" (within the meaning of section 4975 of the Code Section 4975 or section 406 of ERISA) or breach of any fiduciary duty described in section 404 of ERISA Section 406 have occurred and (ii) no act that could, if successful, result in any liability, direct or omission has occurred indirect, for the Company or, to the Knowledge of the Company, any stockholder, officer, director or employee of the Company, except for instances of noncompliance that could reasonably be expected to have would not have, individually or in the aggregate, a Material Adverse EffectEffect on the Company. Neither the There are no pending or threatened claims by or on behalf of any Company nor Plan, or by or on behalf of any participants or beneficiaries of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plans under ERISA or applicable Law, or claiming benefit payments other than those made in the ordinary operation of such plans. No Company Plan is presently under investigation, audit or examination by any Governmental Entity, and no matters are pending with respect to any Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse EffectPlan under any IRS program.
(c) Neither Each Company Benefit Plan intended to be qualified under section 401(a) of the Code, and the trust forming a part thereof, has received a favorable determination letter from the IRS as to its qualification under the Code and to the effect that each such trust is exempt from taxation under section 501(a) of the Code, or has an opinion letter from the IRS to the same effect, and each such determination or opinion letter remains in effect and has not been revoked. Except as disclosed on Section 3.10(a) of the Company nor any Schedule of its Subsidiaries hasExceptions, within six (6) years prior to the date of this Agreement, Company has never maintained, sponsored or been required to contribute to had any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries liability with respect to any Pension other plan subject to the requirements of section 401
(a) of the Code. To the Knowledge of the Company, nothing has occurred since the date of such determination letter that could cause the loss of such qualification or tax-exempt status or the imposition of any liability, lien, penalty or tax under ERISA or the Code. Each Company Benefit Plan maintained by an ERISA Affiliatehas been timely amended to comply with applicable Law.
(d) There are no pending orThe Company does not sponsor, maintain or contribute to, and has never sponsored, maintained or contributed to, or had any liability with respect to, any employee benefit plan subject to the knowledge section 302 of ERISA, section 412 of the CompanyCode or Title IV of ERISA. None of the Company Plans is a multiemployer plan (as defined in section 3(37) of ERISA). The Company does not contribute to, threatened Actions (and has never contributed to or had any other than routine benefit claims and proceedings liability with respect to, a multiemployer plan or with respect to qualified domestic relations orders) relating any plan that has two or more contributing sponsors at least two of whom are not under common control. There is not now, and to the Knowledge of the Company there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the posting of security with respect to a Company Benefit Plans Plan or Company Benefit Arrangements (including any such claim against any fiduciary the imposition of any such pledge, lien, security interest or encumbrance on assets of the Company Benefit Plan under ERISA or Company Benefit Arrangement). No Company Benefit Plan the Code, or Company Benefit Arrangement has received notice similar Laws of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)foreign jurisdictions.
(e) Except as set forth The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not (either alone or upon occurrence of any additional or subsequent events) (i) constitute an event under any Company Plan or any trust or loan related to any of those plans or agreements that will or may result in a prohibition of the transactions contemplated by this Agreement or any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee, or (ii) result in the triggering or imposition of any restrictions or limitations on Section 3.10(ethe right of the Company to amend or terminate any Company Plan. No Company Plan, program, agreement or other arrangement, either individually or collectively, provides for any payment or benefits becoming due to any director or employee of the Company that will be considered an "excess parachute payment" under section 280G of the Code. The Company has not declared any bonus compensation in contemplation of the transactions contemplated by this Agreement. No payments or benefits under any Company Plan or other agreement of the Company are, or are expected to be, subject to the disallowance of a deduction under section 162(m) of the Code. The Company Disclosure Scheduledoes not have any obligation to indemnify, no Company Benefit Plan hold harmless or Company Benefit Arrangement contains gross-up any provision or is subject individual with respect to any Law thatexcise tax, as a result of the Transactions penalty tax or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification interest under Sections section 280G or 409A of the Code. Each Company Plan that is a "nonqualified deferred compensation plan" (as defined in section 409A(d)(1) of the Code) is in documentary compliance with the requirements of section 409A of the Code. Each nonqualified deferred compensation plan has been operated since January 1, 2005 in good faith compliance with section 409A of the Code. No option (other than an option the terms of which comply with the requirements of section 409A of the Code) has an exercise price that has been or may be less than the fair market value of the underlying stock as of the date such option was granted or has any feature for the deferral of compensation that could render the grant subject to section 409A of the Code.
(f) Except as set forth on Section 3.10(fWith respect to any Company Plan that is a group health plan (within the meaning of section 4980B(g)(2) of the Code), such Company Disclosure SchedulePlan complies, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law thatand in each and every case has complied, as a result with all requirements of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G section 4980B of the Code, ERISA, Title XXII of the Public Health Service Act, the applicable provisions of the Social Security Act, the Health Insurance Portability and Accountability Act of 1996, and other applicable Laws, except for instances of noncompliance that would not have, individually or in the aggregate, a Material Adverse Effect on the Company. No Company Benefit Plan provides health or Company Benefit Arrangement provides post-other benefits after an employee’s or former employee’s retirement or other termination of employment medical benefits except as required by COBRA or other applicable Lawsunder section 4980B of the Code.
(g) Neither The Company has paid all amounts that the Company nor any of its Subsidiaries has, within six (6) years prior is required to pay as contributions to the date Company Plans as of this Agreementthe last day of the most recent fiscal year of each of the Company Plans; all benefits accrued under any funded or unfunded Company Plan have been paid, maintained, sponsored, accrued or otherwise adequately reserved in accordance with GAAP; and all monies withheld from employee paychecks with respect to the Company Plans have been transferred to the appropriate Company Plan in a timely manner as required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAby applicable Law.
(h) The Company Benefit Plans and has made no plan or commitment to create any additional Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respectsPlan or to modify or change any existing Company Plan.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee Except as set forth on Schedule 3.10(a) of the Company Schedule of Exceptions, no benefit or any of its Subsidiaries that compensation arrangement is or was subject to maintained outside the Laws of any jurisdiction outside of the United States, or covers any employee residing or working outside the United States (any such benefit and compensation arrangement, a "Foreign Benefit Plan"). All Foreign Benefit Plans (i) have been established, maintained and administered in compliance in all material respects with their terms and all applicable Laws of any Government Entity and (ii) that are subject to a funding requirement under applicable Law are in material compliance with such requirement and with respect to all other Foreign Benefit Plans, reserves therefore have been established on the Closing Date financial statements in accordance with applicable accounting standards and based upon reasonable actuarial assumptions. All contributions or other payments required to be made to or in respect of the Foreign Benefit Plans have been made.
Appears in 2 contracts
Samples: Merger Agreement (Etrials Worldwide Inc.), Merger Agreement (Merge Healthcare Inc)
Employee Benefit Plans. (a) Section 3.10(aSchedule 4.14(a) of the Company Disclosure Schedule contains sets forth a correct and complete list of (i) all material Company Benefit Plans “employee benefit plans,” as defined in Section 3(3) of ERISA, whether or not ERISA applies to them, (ii) all other employment, severance pay, salary continuation, bonus, incentive, stock option, equity-based, retirement, pension, profit sharing or deferred compensation plans, contracts, programs, funds, or arrangements of any kind, and material Company Benefit Arrangements(iii) all other employee benefit plans, contracts, programs, funds, or arrangements (whether written or oral, qualified or nonqualified, funded or unfunded, foreign or domestic, currently effective or terminated) and any trust, escrow, or similar agreement related thereto, whether or not funded, in respect of any present or former employees, directors, managers, officers, equity holders, consultants, or independent contractors of Sellers or any other ERISA Affiliate that are sponsored or maintained by Sellers or any other ERISA Affiliate or with respect to which Sellers or any other ERISA Affiliate has made or is required to make payments, transfers or contributions (all of the above being hereinafter individually or collectively referred to as an “Employee Plan” or “Employee Plans,” respectively). The Company None of Sellers has any liability with respect to any plan, arrangement or practice of the type described in the preceding sentence other than the Employee Plans. Schedule 4.14(a) designates the sponsor of each Employee Plan.
(b) Copies of the following materials have been delivered or made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicableBuyers: (i) all current plan documentsdocuments for each Employee Plan or, in the case of an unwritten Employee Plan, a written description thereof, (ii) all determination, advisory or opinion letters from the IRS with respect to any of the Employee Plans, (iii) all current summary plan descriptions, summaries of material modifications, annual reports, and summary annual reports with respect to any of the Employee Plans, (iv) all current trust documentsagreements, insurance contracts, service provider agreements and amendments thereto; other documents relating to the funding or payment of benefits under any Employee Plan, and (iiv) written descriptions of all material non-written agreements any other documents, forms or other instruments relating to any such plan or arrangement; Employee Plan requested by Buyers.
(iiic) Form 5500 filings for the last three (3) yearsEach Employee Plan has been maintained, including all schedules thereto, annual report, financial statements operated and administered in compliance with its terms and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description documents or agreements and summaries of material modifications thereto; (vi) in compliance with all applicable laws in all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesrespects.
(bd) Each Qualified Employee Plan intended to be qualified under Section 401(a) of the Code is so qualified and has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued been determined by the Internal Revenue Service (IRS to be so qualified, and each trust created thereunder has been determined by the “IRS”) IRS to the effect that such plan is qualified and the trust related thereto is be exempt from federal income taxes tax under Sections 401(athe provisions of Section 501(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan and nothing has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, since the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred date of any such determination that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including give the IRS and the Department of Labor)grounds to revoke such determination.
(e) Except None of Sellers or any other ERISA Affiliate currently has, and at no time in the past has had, an obligation to contribute to a “defined benefit plan” as set forth on defined in Section 3.10(e3(35) of ERISA, a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code, a “multiemployer plan” as defined in Section 3(37) of ERISA or Section 414(f) of the Company Disclosure Schedule, no Company Benefit Plan Code or Company Benefit Arrangement contains any provision a “multiple employer plan” within the meaning of Section 210(a) of ERISA or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f413(c) of the Company Disclosure Schedule, no Company Benefit Plan Code or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or an occupational pension scheme subject to Part 3 of the United Kingdom Pensions Xxx 0000.
(hf) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering With respect to each group health plan benefiting any current or former employee of the Company Sellers or any of its Subsidiaries other ERISA Affiliate that is or was subject to the Laws of any jurisdiction outside Section 4980B of the United StatesCode, Sellers and each other ERISA Affiliate have complied with the continuation coverage requirements of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA
(g) Except as set forth on Schedule 4.14(g), neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement could reasonably be expected to, either alone or in conjunction with any other event (whether contingent or otherwise) (i) constitute a stated triggering event under any Employee Plan that will result in any payment (whether of severance pay or otherwise) becoming due from Sellers to any current or former director, manager, officer, employee or consultant (or dependents of such Persons), or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any current or former director, manager, officer, employee or consultant (or dependents of such Persons) of Sellers.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Heidrick & Struggles International Inc)
Employee Benefit Plans. (a) Schedule 2.16 of the Target Disclosure Schedules lists, with respect to Target and any trade or business (whether or not incorporated) which is treated as a single employer with Target within the meaning of Section 3.10(a414(b), (c), (m) or (o) of the Company Disclosure Schedule contains U.S. Internal Revenue Code of 1986, as amended from time to time (the “Code”) (an “ERISA Affiliate”): (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), (ii) supplemental retirement or cafeteria plans (Code Section 125), and (iii) any current employment, consulting, severance, change of control or retention plans, programs, policies, agreements or arrangements, written or otherwise, as to which unsatisfied liabilities or obligations (contingent or otherwise) remain for the benefit of, or relating to, any present or former employee, consultant, managing member, general partner, manager or director, or which could reasonably be expected to have any liabilities or obligations (each a correct “Benefit Plan” and complete list of all material Company collectively, the “Benefit Plans and material Company Plans”).
(b) With respect to each Target Benefit Arrangements. The Company Plan, Target has made available to provided Parent with true, complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, (to the extent applicable: ): (i) all documents pursuant to which the Target Benefit Plan is maintained, funded and administered (including the plan documents, and trust documents, any amendments thereto, the summary plan descriptions, and any insurance contracts, contracts or service provider agreements and amendments theretoagreements); (ii) written descriptions of all material non-written agreements relating to any such plan the most recent determination, opinion, or arrangementadvisory letter received from the IRS; (iii) each annual report on Form 5500 filings (including any schedule or financial statement) for the last three (3) plan years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) yearsany form of participant communication required by Law; and (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other filing submitted by any Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesAuthority.
(bc) Each Qualified Any Target Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by either obtained from the Internal Revenue Service (the “IRS”) a current favorable determination letter as to its qualified status under the Code, or has applied to the effect that IRS for such a determination letter prior to the expiration of the requisite period under applicable final, temporary or proposed regulations promulgated by the United States Department of the Treasury Department under the Code (“Treasury Regulations”) or IRS pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination or has been established under a standardized prototype plan for which an IRS opinion letter has been obtained by the plan sponsor and is qualified valid as to the adopting employer.
(d) There has been no “prohibited transaction,” as such term is defined in Section 406 of ERISA and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, Section 4975 of the Code, andby Target or any Subsidiary or by any trusts created thereunder, any trustee or administrator thereof or any other Person, with respect to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified statusany Target Benefit Plan. Each Company Target Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and in material compliance with the requirements prescribed by any and all applicable LawsLaws (including ERISA and the Code). Except as set forth on Schedule 2.16 of the Target Disclosure Schedules, Target and each ERISA Affiliate have performed all material obligations required to be performed by them under, are not in any respect in default under or violation of, and have no Knowledge of any default or violation by any other party to, any of the Target Benefit Plans. All contributions and premiums required to be made by Target or any ERISA Affiliate to any Target Benefit Plan have been made on or before their due dates, including ERISAany legally permitted extensions. No Action is pending (including any matter pending under the IRS’s Employee Plans Compliance Resolution System), or to the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Knowledge of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company Target or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit ArrangementSubsidiary is threatened, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored against or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending orsuch Target Benefit Plan, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) inquiry by any Governmental Authority (including the IRS and the IRS, United States Department of Labor)Labor (the “DOL”) or other Governmental Authority.
(e) Except as set forth on Section 3.10(e) in Schedule 2.16 of the Company Target Disclosure ScheduleSchedules or as otherwise provided in this Agreement, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result the consummation of the Transactions transactions contemplated by this Agreement, including the Merger, will not, either alone or upon relatedin combination with any other event or events, concurrent, or subsequent employment termination, would (i) increaseentitle any current or former employee, accelerate managing member, general partner, manager, director or vest consultant of Target or any compensation Subsidiary to any material payment (whether of severance pay, unemployment compensation, phantom stock plan payments, golden parachute, bonus or benefitotherwise), (ii) require severanceaccelerate, termination forgive indebtedness, vest, distribute, or retention payments increase benefits or an obligation to fund benefits with respect to any employee, managing member, general partner, manager, director or consultant of Target or any Subsidiary, (iii) forgive materially increase the amount of compensation due any indebtedness. No Company Benefit Plan such employee, managing member, general partner, manager, director or Company Benefit Arrangement contains consultant; or (iv) results in any provision or “prohibited transaction”, as such term is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A defined in Section 406 of ERISA and Section 4975 of the Code.
(f) Except as set forth on Section 3.10(f) Any amounts payable under any of the Company Disclosure ScheduleTarget Benefit Plans or any other contract, no Company Benefit Plan agreement or Company Benefit Arrangement contains arrangement with respect to which Target or any provision or is subject to Subsidiary may have any Law that, as a result liability will be deductible for federal income Tax purposes by virtue of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company None of the Target Benefit Plan Plans contains any provision requiring a gross-up pursuant to Section 280G or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA 409A of the Code or other applicable Lawssimilar Tax provisions.
(g) Except as set forth on Schedule 2.16 of the Target Disclosure Schedules, no Target Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees, managing member, general partner, managers, directors or consultants of Target or any Subsidiary after retirement or other termination of service (other than: (i) coverage mandated by Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or applicable similar state Laws, or (ii) benefits, the full direct and complete cost of which is borne by the current or former employee, managing member, general partner, manager, director or consultant (or beneficiary thereof)).
(h) Neither the Company Target nor any Subsidiary nor any ERISA Affiliate has any liability with respect to any: (i) employee pension benefit plan (within the meaning of its Subsidiaries hasSection 3(2) of ERISA) which is subject to Part 3 of Subtitle B of Title I of ERISA, within six Title IV of ERISA or Section 412 of the Code, (6ii) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangementmultiemployer plan” as defined in Section 3(403(37) of ERISA.
, (hiii) The Company Benefit Plans “multiple employer plan” within the meaning of Sections 4063 and Company Benefit Arrangements have been documented and administered in accordance with 4064 of ERISA or Section 409A 413(c) of the Code in all material respectsCode, (iv) voluntary employees’ beneficiary association (within the meaning of Section 501(c)(9) of the Code), or (v) self-funded health or welfare plan.
(i) Neither Except as set forth on Schedule 2.16 of the Company Target Disclosure Schedules, neither Target nor any Subsidiary nor any of its Subsidiaries maintains ERISA Affiliates has used the services or workers provided by third party contract labor suppliers, temporary employees, “leased employees” (as that term is defined in Section 414(n) of the Code), or individuals who have provided services as independent contractors to an extent that would reasonably be expected to result in the disqualification of any of the Target Benefit Plans or the imposition of penalties or excise Taxes with respect to the Target Benefit Plans by the IRS or the DOL.
(j) All employees, managers, managing members, general partners, directors and consultants are appropriately classified as such under applicable Law in all material respects, and neither Target nor any Subsidiary is in material violation of any applicable Law in connection with such classification or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws not received notice of any jurisdiction possible violation from any Governmental Authority.
(k) Neither Target nor any ERISA Affiliate provides benefits to employee(s) located outside of the United States.
(l) Each Target Option or other right to acquire Target Common Stock or Target Preferred Stock or other equity of Target (i) has an exercise price that has never been and may never be less than the fair market value of the underlying equity as of the date such Target Option or other right was granted in accordance with all governing documents and in substantial compliance with all applicable Law, (ii) has no feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such Target Option or other right, and (iii) to the extent it was granted to an employee, director or consultant after December 31, 2004, was granted with respect to a class of stock of Target that is “service recipient stock” (within the meaning of applicable regulations under Section 409A of the Code). No Benefit Plan subject to Section 409A of the Code results in additional taxation under Section 409A or provides indemnification or Tax gross-up for such additional Taxation.
Appears in 2 contracts
Samples: Escrow Agreement (SCG Financial Acquisition Corp.), Merger Agreement (SCG Financial Acquisition Corp.)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Schedule 6.03(n)(i), Laredo does not sponsor, maintain or contribute to or have any obligation to maintain or contribute to, or have any direct or indirect liability, whether contingent or otherwise, with respect to any plan, program, arrangement or agreement that is a pension, profit-sharing, savings, retirement, employment, consulting, severance pay, termination, executive compensation, incentive compensation, deferred compensation, bonus, stock purchase, stock option, phantom stock or other equity-based compensation, change-in-control, retention, salary continuation, vacation, sick leave, disability, death benefit, group insurance, hospitalization, medical, dental, life (including all individual life insurance policies as to which Laredo is the owner, the beneficiary, or both), Code Section 3.10(e125 “cafeteria” or “flexible” benefit, employee loan, educational assistance or fringe benefit plan, program, arrangement or agreement, whether written or oral, including, without limitation, any (A) “employee benefit plan” within the meaning of Section 3(3) of the Company Disclosure ScheduleERISA or (B) other employee benefit plans, no Company Benefit Plan agreements, programs, policies, arrangements or Company Benefit Arrangement contains any provision payroll practices, whether or is not subject to ERISA (including any Law that, funding mechanism therefor now in effect or required in the future as a result of the Transactions transaction contemplated by this Agreement or upon relatedotherwise) under which any current or former officer, concurrentdirector, employee, leased employee, consultant or subsequent employment terminationagent (or their respective beneficiaries) of Laredo has any present or future right to benefits (individually, a “Laredo Employee Plan,” and collectively the “Laredo Employee Plans”). All references to “Laredo” in this Section 6.03(n) shall refer to Laredo, its subsidiaries and Affiliates and any employer that would (i) increase, accelerate or vest any compensation or benefitbe considered a single employer with Laredo under Sections 414(b), (iic), (m) require severance, termination or retention payments or (iiio) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(fii) Except as set forth on Laredo does not maintain, contribute or have any liability, whether contingent or otherwise, with respect to, and has not within the preceding six years maintained, contributed or had any liability, whether contingent or otherwise, with respect to any Laredo Employee Plan (including, for such purpose, any “employee benefit plan,” within the meaning of Section 3.10(f3(3) of ERISA, which Laredo previously maintained or contributed to within such preceding six years), that is, or has been, (A) subject to a Title IV Plan or Section 412 of the Code, (B) maintained by more than one employer within the meaning of Section 413(c) of the Company Disclosure ScheduleCode, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is (C) subject to any Law thatSections 4063 or 4064 of ERISA, as (D) a result of the Transactions or upon relatedMultiemployer Plan, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(gE) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (F) an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA and that is not intended to be qualified under Section 401(a) of the Code.
(hiii) The Company Benefit Plans and Company Benefit Arrangements have (A) Each Laredo Employee Plan has been documented established and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws; (B) with respect to each Laredo Employee Plan, all reports, returns, notices and other documentation that are required to have been filed with or furnished to the IRS, DOL or any other Governmental Authority, or to the participants or beneficiaries of such Laredo Employee Plan have been filed or furnished on a timely basis; (C) each Laredo Employee Plan that is intended to be qualified within the meaning of Section 401(a) of the Code is so qualified and has received a favorable determination letter or opinion letter from the IRS to the effect that the Laredo Employee Plan satisfies the requirements of Section 401(a) of the Code and that its related trust is exempt from taxation under Section 501(a) of the Code and, to the Knowledge of Laredo, there are no facts or circumstances that could reasonably be expected to cause the loss of such qualification or the imposition of any material liability, penalty or tax under ERISA, the Code or any other applicable Laws; (D) other than routine claims for benefits, no Liens, lawsuits or complaints to or by any person or Governmental Authority have been filed against any Laredo Employee Plan or Laredo or, to the Knowledge of Laredo, against any other person or party and, to the Knowledge of Laredo, no such Liens, lawsuits or complaints are contemplated or threatened with respect to any Laredo Employee Plan; (E) no individual who has performed services for Laredo has been improperly excluded from participation in any Laredo Employee Plan; and (F) there are no audits or proceedings initiated pursuant to the IRS Employee Plans Compliance Resolution System (currently set forth in Revenue Procedure 2008-50) or similar proceedings pending with the IRS or DOL with respect to any Laredo Employee Plan.
(iv) Neither Laredo nor any organization to which Laredo is a successor or parent corporation, within the meaning of Section 4069(b) of ERISA, has engaged in any transaction described in Sections 4069 or 4212(c) of ERISA.
(v) Neither Laredo nor, to the Knowledge of Laredo, any other “party in interest” or “disqualified person” with respect to any Laredo Employee Plan has engaged in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code involving such Laredo Employee Plan which, individually or in the aggregate, could reasonably be expected to subject Laredo to a tax or penalty imposed by Section 4975 of the Code or Sections 501, 502 or 510 of ERISA. To the Knowledge of Laredo, no fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply with the requirements of ERISA, the Code or any other applicable laws in connection with the administration or investment of the assets of any Laredo Employee Plan.
(vi) All liabilities or expenses of Laredo in respect of any Laredo Employee Plan (including workers compensation) which have not been paid, have been properly accrued on Laredo’s most recent financial statements in compliance with GAAP. All contributions (including all employer contributions and employee salary reduction contributions) or premium payments required to have been made under the terms of any Laredo Employee Plan, or in accordance with applicable Law, as of the date hereof have been timely made or reflected on the Laredo Unaudited April 30, 2011 Balance Sheet in accordance with GAAP.
(vii) Laredo has no obligation to provide or make available post-employment benefits under any Welfare Plan for any current or former officer, director, employee, leased employee, consultant or agent (or their respective beneficiaries) of Laredo, except as may be required under the COBRA, and at the sole expense of such individual. There are no reserves, assets, surpluses or prepaid premiums with respect to any Laredo Employee Plan which is a Welfare Plan.
(viii) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (A) result in any payment becoming due, or increase the amount of any compensation due, to any current or former officer, director, employee, leased employee, consultant or agent (or their respective beneficiaries) of Laredo; (B) increase any benefits otherwise payable under any Laredo Employee Plan; (C) result in the acceleration of the time of payment or vesting of any such compensation or benefits; or (D) result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code. No current or former officer, director, employee, leased employee, consultant or agent (or their respective beneficiaries) has or will obtain a right to receive a gross-up payment from Laredo with respect to any excise taxes that may be imposed upon such individual pursuant to Section 409A of the Code, Section 4999 of the Code in all material respectsor otherwise.
(iix) Neither Laredo has made available to Contributors, the Company nor or their representatives with respect to each Laredo Employee Plan, a true, correct and complete copy (or, to the extent no such copy exists or the Laredo Employee Plan is not in writing, an accurate written description) thereof and, to the extent applicable: (A) the most recent documents constituting the Laredo Employee Plan and all amendments thereto, (B) any related trust agreement or other funding instrument and all other material contracts currently in effect with respect to such Laredo Employee Plan (including, without limitation, all administrative agreements, group insurance contracts and group annuity contracts); (C) the most recent IRS determination letter or opinion letter; (D) the most recent summary plan description, summary of material modifications and any other written communication (or a written description of any oral communications) by Laredo to its Subsidiaries maintains employees concerning the extent of the benefits provided under a Laredo Employee Plan; (E) the three most recent (1) Forms 5500 and attached schedules, and (2) audited financial statements; (F) for the last three years, all correspondence with the IRS, the DOL and any other Governmental Authority regarding the operation or the administration of any Laredo Employee Plan; (G) all discrimination tests for the most recent plan year; and (H) any other documents in respect of any Laredo Employee Plan reasonably requested by Contributors or the Company.
(x) Laredo has maintained no plan, contract or commitment, whether legally binding or not, to create any Benefit additional employee benefit or compensation plans, policies or arrangements or, except as may be required by Law, to modify any Laredo Employee Plan. Laredo may amend or terminate any Laredo Employee Plan (other than an employment agreement or Benefit Arrangement covering any similar agreement that cannot be terminated without the consent of the other party) at any time without incurring liability thereunder, other than in respect of accrued and vested obligations and medical or welfare claims incurred prior to such amendment or termination.
(xi) No Laredo Employee Plan covers any current or former employee officers, directors, employees, leased employees, consultants or agents (or their respective beneficiaries) of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction Laredo who reside outside of the United States.
Appears in 2 contracts
Samples: Contribution Agreement (Laredo Petroleum - Dallas, Inc.), Contribution Agreement (Laredo Petroleum Holdings, Inc.)
Employee Benefit Plans. (a) For purposes hereof, “Employee Plans” means (i) all “employee benefit plans” (as defined in Section 3.10(a3(3) of ERISA), whether or not subject to ERISA and (ii) all other employment, consulting and independent contractor agreement, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement (including early retirement and supplemental retirement), disability, insurance, vacation, incentive, deferred compensation, supplemental retirement (including termination indemnities and seniority payments), severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plans, programs, agreement, contracts, policies or arrangements (whether or not in writing) maintained or contributed to for the benefit of or relating to any Employee of the Company or any ERISA Affiliate, or with respect to which the Company, any of its Subsidiaries or any ERISA Affiliate has any material Liability (together the “Employee Plans”). Section 3.17(a) of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit ArrangementsEmployee Plans. The With respect to each Employee Plan, the Company has made available to Parent complete and correct accurate copies of (A) the following three most recent annual report on Form 5500 required to have been filed with the IRS for each Employee Plan, including all schedules thereto; (B) the most recent determination letter or opinion letter, if any, from the IRS for any Employee Plan that is intended to qualify under Section 401(a) of the Code; (C) the plan documents and summary plan descriptions, or a written description of the terms of any Employee Plan that is not in writing; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; (E) all Contracts and other important documentation (e.g., actuarial reports) relating to each Employee Plan, including administrative service agreements; (F) all discrimination tests for each Employee Plan for the most recent plan year; (G) any notices to or from the IRS or any office or representative of the DOL or any similar Governmental Authority relating to any compliance issues in respect of any such Employee Plan in the past two (2) years; (H) if the Employee Plan is funded, the most recent annual and periodic accounting of Employee Plan assets (I) with respect to each material Company Benefit Employee Plan and material Company Benefit Arrangementthat is maintained in any non-U.S. jurisdiction (the “International Employee Plans”), to the extent applicable: , (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (vx) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices annual report or other communications received from the IRS, Department of Labor, or similar compliance documents required to be filed with any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to such plan and (y) any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, document comparable to the knowledge of the Company, threatened Actions determination letter reference under clause (other than routine benefit claims and proceedings with respect to qualified domestic relations ordersB) above issued by a Governmental Authority relating to any Company Benefit Plans the satisfaction of applicable Law necessary to obtain the most favorable tax treatment and (J) all amendments, modifications or Company Benefit Arrangements (including supplements to any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)document.
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Sandisk Corp), Merger Agreement (Fusion-Io, Inc.)
Employee Benefit Plans. (a) Section 3.10(a3.14(a) of the Company Impax Disclosure Schedule contains Letter sets forth a correct true and complete list of all material Company Benefit Plans “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and all other material Company Benefit Arrangements. The Company has made available employee benefit plans, programs, agreements, policies, arrangements or payroll practices, including with respect to Parent bonus, employment, consulting or other compensation, collective bargaining, company stock, incentive and other equity or equity-based compensation, or deferred compensation, retirement, pension, change in control, termination or severance plans or arrangements, stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and scholarship, in each case, (i) that are sponsored or maintained by Impax or any of its Subsidiaries, (ii) to which Impax or any of its Subsidiaries contributes or is obligated to contribute to, or in respect of which any potential liability is borne by Impax or any of its Subsidiaries, (iii) under which for current or former employees of Impax or any of its Subsidiaries (the “Impax Employees”) or directors or former directors thereof are eligible to participate or receive benefits or (iv) to which Impax or any of its Subsidiaries is a party (collectively, the “Impax Plans”).
(b) True and complete and correct copies of the following documents documents, with respect to each material Company Benefit Plan and material Company Benefit Arrangementof the Impax Plans have, prior to the date of this Agreement, been delivered to Amneal by Impax, to the extent applicable: (i) all the plan documentsdocument (or a written summary if the Impax Plan is not reduced to writing), any material amendments thereto and related trust documents, insurance contractscontracts or other funding arrangements, service provider agreements and amendments theretoin each case, as currently in effect; (ii) written descriptions of the most recent Form 5500 and all material non-written agreements relating schedules attached thereto filed with respect to any such plan or arrangementImpax Plan, and the most recent actuarial report and financial statements, if any, prepared with respect to such Impax Plan; and (iii) Form 5500 filings for all material communications received from any Governmental Authority relating to Impax Plans in the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(bc) Each Qualified Plan has received a favorable determination letterExcept as would not reasonably be expected to have, individually or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has aggregate, an Impax Material Adverse Effect, the Impax Plans have been administered in all material respects maintained in accordance with its their terms and with all applicable Laws, including provisions of ERISA, the CodeCode and other applicable Law, and neither Impax (or any of its Subsidiaries) nor, to the Patient Protection and Affordable Care Act (Knowledge of Impax, any “ACA”) and the Health Insurance Portability and Accountability Act. With party in interest” or “disqualified person” with respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no the Impax Plans has engaged in a non-exempt transactions “prohibited by Code transaction” within the meaning of Section 4975 of the Code or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effectof ERISA. Neither the Company Impax nor any of its Subsidiaries has any material liability for breach of fiduciary duty or any other failure to act or comply with applicable Law in connection with the administration or investment of the assets of any Impax Plan.
(d) Each of the Impax Plans that is liable for any penalty or excise taxes assessable intended to be qualified under ACA. Each individual classified as an independent contractor or other non-employee classification Section 401(a) of the Code has been determined by the Company IRS to be qualified under Section 401(a) of the Code. To the Knowledge of Impax, nothing has occurred that would reasonably be expected to adversely affect the qualified status of any such Impax Plan or the Tax exemption of any trust related thereto.
(e) None of Impax, its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangementor, except as could would not reasonably be expected to have result in material liability to Impax, any trade or business (whether or not incorporated) that is treated as a Material Adverse Effect.
single employer with any of them under Sections 414(b), (c), (m) Neither or (o) of the Company nor Code (a “Impax ERISA Affiliate”) (or that was so treated at any of its Subsidiaries has, within time during the six (6) years immediately prior to the date of this Agreement) has ever had (or, maintainedin the case of any former Impax ERISA Affiliate during the last six (6) years, sponsored or been required to contribute to had at the time it was an Impax ERISA Affiliate) any Pension Plan. There are no current or contingent Liabilities that could liability with respect to (i) a plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code or (ii) any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) (a “Multiemployer Plan”).
(f) All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Impax Plans (including workers compensation) or by Law (without regard to any waivers granted under Section 412 of the Code), to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension), except where the failure to do so has not had and would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
(g) There are no pending actions, claims or lawsuits that have been asserted or instituted against the Impax Plans, the assets of any of the trusts under the Impax Plans or the sponsor or administrator of any of the Impax Plans, or, to the Knowledge of Impax, against any fiduciary of the Impax Plans with respect to the operation of any of the Impax Plans (other than routine benefit claims), nor does Impax have any Knowledge of any threatened action, claim or lawsuit, other than such actions, claims or lawsuits that have not had or would not reasonably be imposed upon expected to have, individually or in the Company aggregate, an Impax Material Adverse Effect.
(h) None of the Impax Plans provides for post-employment life or health insurance, benefits or coverage for any participant or any beneficiary of a participant, except as may be required under applicable Law, including Section 4980B of the Code (“COBRA”) and which are provided at the sole expense of the participant or the participant’s beneficiary.
(i) Except as otherwise specifically contemplated by the terms of this Agreement, neither the execution and delivery of this Agreement nor the consummation of the Transactions (either by themselves or when combined with any other event), will (i) result in any payment becoming due to any Impax Employee, (ii) increase any benefits otherwise payable under any Impax Plan, (iii) result in the acceleration of the time of payment or vesting of any such benefits under any Impax Plan, (iv) result in any obligation to fund any trust or other arrangement with respect to compensation or benefits under an Impax Plan, (v) result in any “excess parachute payment” (within the meaning of Section 280G of the Code) becoming due to any current or former employee or other individual service provider of Impax or any of its Subsidiaries with respect or (vi) result in any breach or violation of or default under or limit Holdco’s, Amneal’s or Impax’s right to amend, modify or terminate any Pension Plan maintained by an ERISA AffiliateImpax Plan.
(dj) There are Except as would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect, each Impax Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code is in documentary compliance with, and Impax and its Subsidiaries have, since January 1, 2014, complied in practice and operation with, all applicable requirements of Section 409A of the Code. Neither Impax nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any Impax Employee for any Tax incurred by such Impax Employee, including under Section 409A or 4999 of the Code, or any interest or penalty related thereto.
(k) As of the date hereof, no Impax Employee who is an officer for purposes of Section 16 of the Exchange Act has given notice of intent to terminate his or her employment with Impax or any of its Subsidiaries.
(l) Except as would not, individually or in the aggregate, reasonably be expected to result in any material liability to Impax, (i) each Impax Plan which is maintained primarily for the benefit of employees working outside of the United States (each, a “Non-U.S. Impax Plan”) has been established, administered, operated, funded, invested and maintained in compliance with the applicable Laws relating to such plans in the jurisdictions in which such Impax Plan is present or operates and, to the extent relevant, the United States, (ii) all required contributions and premiums to be made under each Non-U.S. Impax Plan have been made with respect thereto (whether pursuant to the terms of such Non-U.S. Impax Plan or by applicable Law) and (iii) as of the date of this Agreement, there is no pending or, to the knowledge of the CompanyImpax, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) litigation relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Non-U.S. Impax Plan.
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Business Combination Agreement (Atlas Holdings, Inc.), Business Combination Agreement (Impax Laboratories Inc)
Employee Benefit Plans. With respect to the Benefit Plans of the Company:
(a1) Section 3.10(aNeither the Company nor any ERISA Affiliate maintains, administers or contributes to any Benefit Plan other than those Plans, Multiemployer Plans, Welfare Plans and Other Benefit Plans listed in the Disclosure Schedule.
(2) Each Benefit Plan complies, in form and operation, in all material respects, with all applicable Laws, including ERISA and the Code.
(3) Any Benefit Plan intended to qualify under section 401(a) of the Company Disclosure Schedule contains a correct and complete list of Code meets in all material Company respects all requirements for qualification under section 401(a) of the Code and the regulations thereunder. A favorable determination as to the qualification under the Code of each of the Benefit Plans and material Company Benefit Arrangementsintended to comply with section 401(a) of the Code has been made by the IRS. The Company has made available to Parent complete and correct copies Purchaser a copy of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that IRS concerning each such plan is qualified Benefit Plan’s qualification and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified statusany outstanding request for a determination letter. Each Company such Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all the applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) provisions of ERISA and the Health Insurance Portability Code and Accountability Act. the regulations thereunder, and no matter exists which would adversely affect the qualified tax-exempt status of such Benefit Plan and any related trust.
(4) With respect to each Company Benefit Plan there has been made available to Purchaser the following: a copy of the annual report (if required under ERISA) with respect to each such Benefit Plan for the last three years (including all schedules and attachments); a copy of the summary plan description, together with each summary of material modifications, required under ERISA with respect to such Benefit Plan; a true, correct and complete copy of such Benefit Plan; all trust agreements, insurance contracts, accounts or other documents which establish the funding vehicle for any Benefit Plan and Company the latest financial statements thereof; any actuarial valuations of such Benefit ArrangementPlan; and any investment management agreements, administrative services contracts, or other agreements and documents relating to the ongoing administration and investment of any Benefit Plan.
(i5) There are no non-exempt actions, suits, proceedings, investigations or hearings pending (other than routine claims for benefits) or, to Sellers’ knowledge, overtly threatened with respect to any Benefit Plan or any fiduciary or assets thereof. To Seller’ knowledge, with respect to each Benefit Plan, no prohibited transactions prohibited by Code Section 4975 or (as defined in ERISA Section 406 or Code Section 4975) and no violations of ERISA Section 407 for which an applicable statutory or administrative exemption does not exist have occurred for which the Company or an Affiliate has any material liability.
(6) No Benefit Plan is a Multiemployer Plan or single-employer plan (as defined in Section 4001 of ERISA) which is subject to Title IV of ERISA, and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither neither the Company nor any an ERISA Affiliate of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company has ever contributed or been obligated to contribute to any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectsuch plan within the 6-year period preceding the date hereof.
(c7) Neither the Company nor any ERISA Affiliate of its Subsidiaries has, the Company has terminated a Benefit Plan which is an employee pension benefit plan as defined in Section 3(2) of ERISA within six (the 6) years prior to -year period preceding the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliatehereof.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) 8) Neither the Company nor an ERISA Affiliate has any liability or obligation to provide life, medical or other welfare benefits to former or retired employees, other than pursuant COBRA or similar state Laws which require limited continuation of its Subsidiaries has, within six coverage for such benefits.
(69) years prior to The consummation of the date of transaction contemplated by this Agreement, maintainedother than by reason of actions taken by Purchaser following the Closing, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40will not (A) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering entitle any current or former employee of the Company to severance pay, unemployment compensation or any other payment, or (B) accelerate the time of its Subsidiaries that is payment or was subject to vesting, or increase the Laws amount of any jurisdiction outside compensation due to any current or former employee of the United StatesCompany.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Craft Brewers Alliance, Inc.), Equity Purchase Agreement (Anheuser-Busch Companies, Inc.)
Employee Benefit Plans. (a) Section 3.10(aSchedule 3.11(a) of the Company Disclosure Schedule contains Letter sets forth a true, correct and complete list of all each material Employee Benefit Plan, excluding any individual employment or consulting agreement or offer letter that either: (i) is terminable by the Company at will or upon a notice of thirty days or less; or (ii) provides for notice and/or garden leave and/or severance obligations only as required by applicable Legal Requirements, in each case, so long as such agreement or offer letter does not provide for: (A) severance, notice, garden leave or any similar obligations beyond those required by applicable Legal Requirements; (B) transaction or retention bonuses or change in control payments; or (C) Tax gross-ups; provided, however that a form of any such excluded agreement or offer letter is required to be listed.
(b) With respect to each Employee Benefit Plans and material Company Benefit Arrangements. The Plan, the Company has made available to Parent provided a true, correct and complete and correct copies copy of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementdocuments, to the extent applicable, including, in the case of any Employee Benefit Plan not set forth in writing, a written description thereof: (i) all the current plan documents, documents and any amendments thereto and any related trust documents, insurance contracts, service provider agreements and amendments theretocontracts or other funding arrangements; (ii) written descriptions of any other documents which are required to be filed with any regulatory authority together with all material non-written agreements relating other tax clearances and approvals necessary to any such plan or arrangementobtain favorable tax treatment for the Employee Benefit Plan; and (iii) Form 5500 filings for any non-routine correspondence with any Governmental Entity regarding any Employee Benefits Plan during the last past three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(bc) Each Qualified Employee Benefit Plan has received a favorable determination letterthat is or was established, maintained or is the subject of a favorable advisory or opinion letter as to its qualification, issued administered by the Internal Revenue Service (Company has, since the “IRS”) to the effect that such plan is qualified Reference Date, been established, maintained and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable LawsLegal Requirements. No Group Company nor, including ERISAto the Knowledge of the Company, any other Person has made any binding commitment to materially modify, change or terminate any Employee Benefit Plan after the date hereof, other than with respect to a modification, change or termination required by this Agreement.
(d) None of the Employee Benefit Plans provides for, and the Group Companies have no liability in respect of, post-retirement health, welfare or life insurance benefits or coverage for any participant or any beneficiary of a participant, except as may be required pursuant to relevant Legal Requirements and at the sole expense of such participant or the participant’s beneficiary.
(e) With respect to any Employee Benefit Plan established or maintained by the Company or, to the Company’s Knowledge, any other Employee Benefit Plan, no actions, suits, claims (other than routine claims for benefits in the Ordinary Course of Business), audits, proceedings or lawsuits are pending, or, to the Knowledge of the Company, threatened against any Employee Benefit Plan, the Codeassets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Benefit Plan with respect to the Patient Protection operation thereof.
(f) Neither the execution and Affordable Care Act delivery of this Agreement nor the consummation of the Transactions will, either alone or in connection with any other event(s): (i) result in any payment or benefit becoming due to any current or former employee, officer, contractor or director of the Company or its subsidiaries under any Employee Benefit Plan; (ii) increase any amount of compensation or benefits otherwise payable to any current or former employee, officer, contractor or director of the Company or its subsidiaries under any Employee Benefit Plan; (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, officer, contractor or director of the Company or its subsidiaries under any Employee Benefit Plan; or (iv) limit the right to merge, amend or terminate any Employee Benefit Plan.
(g) The Company maintains no obligations under any Employee Benefit Plan to gross-up or reimburse any individual for any Tax or related interest or penalties incurred by such individual.
(h) Each Employee Benefit Plan subject to the Legal Requirements of any jurisdiction outside the United States (each, a “ACAForeign Plan”) and is listed on Schedule 3.11(h) of the Health Insurance Portability and Accountability ActCompany Disclosure Letter. With respect to each Company Benefit Plan and Company Benefit Arrangement, Foreign Plan: (i) such Foreign Plan has been operated in compliance with the terms of such Foreign Plan and the applicable Legal Requirement of each jurisdiction in which such Foreign Plan is maintained, to the extent those Legal Requirements are applicable to such Foreign Plan, and, to the Company’s Knowledge, there are no non-exempt transactions prohibited pending investigations by Code Section 4975 any Governmental Entity involving such Foreign Plan, and no pending claims (except for claims for benefits payable in the normal operation of such Foreign Plan), suits or ERISA Section 406 have occurred and proceedings against such Foreign Plan or asserting any rights or claims to benefits under such Foreign Plan; (ii) all employer contributions to each such Foreign Plan required by applicable Legal Requirements or by the terms of such Foreign Plan have been made, or, if applicable, based on reasonable actuarial assumptions and accrued in accordance with U.S. GAAP; (iii) there are no act or omission unpaid amounts past due in respect of any such Foreign Plan in which any Group Company participates; (iv) each such Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory and administrative authorities and is approved by any applicable taxation authorities to the extent such approval is available; (v) to the Knowledge of the Company, no event has occurred since the date of the most recent approval or application therefor relating to any such Foreign Plan that could would reasonably be expected to have a Material Adverse Effect. Neither adversely affect any such approval or good standing; (vi) each such Foreign Plan required to be fully funded or fully insured, is fully funded or fully insured, including any back-service obligations, on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) in compliance with all applicable Legal Requirements, in each of the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, foregoing cases except as could would not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior material to the date Group Companies taken as a whole; (vii) no Foreign Plan has unfunded liabilities that will not be offset by insurance or that are not fully accrued on the Financial Statements; and (viii) the consummation of this Agreement, maintained, sponsored the Transactions will not by itself create or been required to contribute to otherwise result in any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries liability with respect to any Pension Plan maintained by an ERISA Affiliatesuch Foreign Plan.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Business Combination Agreement (Moringa Acquisition Corp), Business Combination Agreement (Moringa Acquisition Corp)
Employee Benefit Plans. (a) Section 3.10(a4.11(a) of the Company Disclosure Schedule contains sets forth a correct true and complete list or description of all each employee welfare benefit plan and employee pension benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Sections 3(1) and 3(2), each other material compensation, consulting, employment or collective bargaining agreement, each stock option, stock purchase, stock appreciation right, other stock based, life, health, disability or other insurance or benefit, bonus, deferred or incentive compensation, severance or separation, profit sharing, retirement, or other employee benefit plan, practice, policy or arrangement of any kind, oral or written, covering employees or former employees of the Company or the Subsidiaries which the Company or the Subsidiaries maintain or contribute to as of the date of this Agreement (or, with respect to any employee pension benefit plan, has maintained or contributed to in the last ten years) or to which the Company or a Subsidiary is a party or by which it is otherwise bound (collectively, the “Company Benefit Plans”). Copies of such Company Benefit Plans (and, if applicable, related trust or funding agreements, insurance policies and material Company Benefit Arrangements. The Company has made available service provider agreements) and all amendments thereto and written descriptions if not reduced to a written document have been furnished to Parent complete and correct copies of the following documents together with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) and summary plan description and summaries of material modifications thereto; (vi) all material notices descriptions, IRS determination letters or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesopinion letters.
(b) Each Qualified Except as set forth in Section 4.11(b) of the Company Disclosure Schedule, neither the Company nor any Person treated as a single employer with the Company under Section 414(b), (c), (m) or (o) of the Code maintains or is required to contribute to any Company Benefit Plan has received that (i) is a “multiemployer plan” as defined in Sections 3(37) of ERISA, (ii) is subject to the funding requirements of Section 412 of the Code or Title IV of ERISA, (iii) provides for post-retirement medical, life insurance or other welfare-type benefits (other than as required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or under a similar state law), or (iv) is a multiple employer plan as defined in Section 413(c) of the Code.
(c) Except as set forth in Section 4.11(c) of the Company Disclosure Schedule, the Company Benefit Plans and their related trusts intended to qualify under Sections 401 and 501(a) of the Code are subject to a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by from the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, IRS and, to the knowledge Knowledge of the Company, no act or omission in the operation of such plan nothing has occurred that could adversely affect its qualified status. Each is reasonably likely to result in the revocation of such letter, except where the failure to so comply would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect.
(d) The Company Benefit Plan Plans have been maintained and each Company Benefit Arrangement has been administered in all material respects in accordance with its their terms and applicable laws except where the failure to so comply would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, it being understood that it shall not be a breach of this representation or any other representation in this Agreement if as a result of the transactions contemplated by this Agreement (or otherwise on or after the date of this Agreement) any pension plan is required to be funded or terminated.
(e) As of the date of this Agreement, there are no suits, actions, disputes, claims (other than routine claims for benefits), arbitrations, audits, examinations, administrative or other proceedings pending or, to the Knowledge of the Company, threatened with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each any Company Benefit Plan or any related trust or other funding medium thereunder or with respect to the Company as the sponsor or fiduciary thereof, and no Company Benefit ArrangementPlan is currently the subject of a submission under IRS Employee Plans Compliance Resolution System or any similar system, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred nor under any Department of Labor amnesty program, and (ii) no act or omission has occurred that could the Company does not anticipate any such submission of any Company Benefit Plan, in each case which would reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(cf) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been All contributions required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon made under the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary terms of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan applicable law have been timely made or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including have been reflected on the IRS audited financial statements in accordance with GAAP, and the Department of Labor).
(e) Except as set forth on Section 3.10(e) none of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all has any material respectsunfunded liabilities not so reflected.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Enventis Corp), Merger Agreement (Consolidated Communications Holdings, Inc.)
Employee Benefit Plans. (a) Set forth in Section 3.10(a) 3.13 ---------------------- of the Company Disclosure Schedule contains a correct Letter attached hereto is an accurate and complete list of all material Company Benefit Plans domestic and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies foreign (i) "employee benefit plans," within the meaning of Section 3(3) of the following documents Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations thereunder ("ERISA"), (ii) bonus, stock option, stock purchase, restricted stock, incentive, fringe benefit, "voluntary employees' beneficiary associations" under Section 501(c)(9) of the Internal Revenue Code of 1986, as amended, and the rules and regulations thereunder (the "Code"), profit-sharing, pension or retirement, deferred compensation, medical, life insurance, disability, accident, salary continuation, severance, accrued leave, vacation, sick pay, sick leave, supplemental retirement and unemployment benefit plans, programs, arrangements, commitments and/or practices (whether or not insured), and (iii) employment, consulting, termination, and severance contracts or agreements, in each case for active, retired or former employees or directors, whether or not any such plans, programs, arrangements, commitments, contracts, agreements and/or practices (referred to in (i), (ii) or (iii) above) are in writing or are otherwise exempt from the provisions of ERISA, that have been established, maintained or contributed to (or with respect to each material which an obligation to contribute has been undertaken) or with respect to which any potential liability is borne by the Company Benefit Plan or any of its Subsidiaries (including, for this purpose and material Company Benefit Arrangementfor the purpose of all of the representations in this Section 3.13, any predecessors to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating Company or to any such plan of its Subsidiaries and all employers (whether or arrangement; (iiinot incorporated) Form 5500 filings for that would be treated together with the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, Company or any other Governmental Authority on or after of its Subsidiaries as a single employer within the meaning of Section 414 of the Code since January 1, 2014; 1993 (viian "ERISA Affiliate") required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiescollectively, "Employee Benefit Plans").
(b) Each Qualified Except as set forth in Section 3.13 of the Company Disclosure Letter: (i) each Employee Benefit Plan is in compliance with applicable law and has been administered and operated in all respects in accordance with its terms, except to the extent that the failure to comply would not reasonably be expected to result in a material liability, (ii) each Employee Benefit Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code, has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by from the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission event has occurred and no condition exists which could reasonably be expected to result in the operation revocation of any such determination, (iii) no Employee Benefit Plan is a "multiemployer plan," within the meaning of Section 4001(a)(3) of ERISA, covered by Title IV of ERISA (a "Multiemployer Plan"), (iv) neither the Company nor any ERISA Affiliate has incurred any unsatisfied withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA to any Multiemployer Plan, (v) the actuarial present value of the accumulated plan benefits (whether or not vested) under any Employee Benefit Plan covered by Title IV of ERISA determined as of the close of its most recent plan year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the fair value of the assets allocable thereto, (vi) no Employee Benefit Plan covered by Title IV of ERISA has been terminated and no proceedings have been instituted to terminate or appoint a trustee to administer any such plan, (vii) no "reportable event" (as defined in Section 4043 of ERISA) has occurred that could adversely affect its qualified status. Each Company or will occur by virtue of the transactions contemplated by this Agreement with respect to any Employee Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including covered by Title IV of ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”viii) and the Health Insurance Portability and Accountability Act. With respect to each Company no Employee Benefit Plan and Company Benefit Arrangementsubject to Section 412 of the Code or Section 302 of ERISA has incurred any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, or obtained a waiver of any minimum funding standard or an extension of any amortization period under Section 412 of the Code or Section 303 or 304 of ERISA, (iix) no non-exempt neither the Company nor any of its Subsidiaries, nor, to the Company's knowledge, any other "disqualified person" or "party in interest" (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in any transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred in connection with any Employee Benefit Plan that could reasonably be expected to have a Material Adverse Effect. Neither result in the imposition upon the Company nor of a penalty pursuant to Section 502 of ERISA, damages pursuant to Section 409 of ERISA or a tax pursuant to Section 4975 of the Code, which in any case is a material amount, (x) no Employee Benefit Plan provides for post-employment or retiree welfare benefits, except to the extent required by Part 6 of its Subsidiaries is liable for any penalty Subtitle B of Title I of ERISA or excise taxes assessable under ACA. Each individual classified as an independent contractor Section 4980B of the Code and (xi) no liability, claim, action or other non-employee classification by the Company or any of its Subsidiaries litigation, has been properly classified for purposes of participation and benefit accrual under each Company made, commenced or, to the Company's knowledge, threatened with respect to any Employee Benefit Plan (other than routine claims for benefits payable in the ordinary course, and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectappeals of denied such claims).
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on in Section 3.10(e) 3.13 of the Company Disclosure ScheduleLetter, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result the execution of this Agreement and the consummation of the Transactions transactions contemplated hereby, do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, whether or not legally enforceable, which (either alone or upon related, concurrent, the occurrence of any additional or subsequent employment termination, would (ievent) increase, accelerate will or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a may result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide in any payment (whether of severance pay or compensation that would constitute an “excess otherwise), "parachute payment” under " (as such term is defined in Section 280G of the Code. No Company Benefit Plan ), acceleration, vesting or Company Benefit Arrangement provides post-employment medical increase in benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current employee or former employee or director of the Company or any of its Subsidiaries that subsidiaries. Except as set forth in Section 3.13 of the Company Disclosure Letter, no Employee Benefit Plan provides for the payment of severance, termination, change in control or similar-type payments or benefits.
(d) The Company has delivered or caused to be delivered to Parent true and correct copies of (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS") for each applicable Employee Benefit Plan, (ii) the Employee Benefit Plan document or documents, (iii) each trust agreement relating to each Employee Benefit Plan, (iv) the most recent summary plan description for each Employee Benefit Plan for which a summary plan description is required, (v) the most recent actuarial report or was valuation, if any, relating to an Employee Benefit Plan subject to Title IV of ERISA and (vi) the Laws of most recent determination, if any, issued by the IRS with respect to any jurisdiction outside Employee Benefit Plan intended to be qualified under Section 401(a) of the United StatesCode.
Appears in 2 contracts
Samples: Merger Agreement (Pulaski Furniture Corp), Merger Agreement (Pine Holdings Inc)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule contains 4.13.1. FSBI DISCLOSURE SCHEDULE 4.13.1 includes a correct and complete descriptive list of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, stock appreciation, phantom stock, severance, welfare benefit plans, fringe benefit plans, employment, severance and change in control agreements and all other material Company benefit practices, policies and arrangements maintained by FSBI or any FSBI Subsidiary in which any employee or former employee, consultant or former consultant or director or former director of FSBI or any FSBI Subsidiary participates or to which any such employee, consultant or director is a party or is otherwise entitled to receive benefits (the “Compensation and Benefit Plans Plans”). Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.1, neither FSBI nor any of its Subsidiaries has any commitment to create any additional Compensation and material Company Benefit Arrangements. The Company Plan or to materially modify, change or renew any existing Compensation and Benefit Plan (any modification or change that increases the cost of such plans would be deemed material), except as required to maintain the qualified status thereof, FSBI has made available to Parent complete PFS true and correct copies of the following documents with respect to Compensation and Benefit Plans. There are no outstanding unvested or unexercised awards under the First Savings Bank 1992 Incentive Stock Option Plan and the First Savings Bank 1992 Stock Option Plan for Outside Directors and there are no awards available for issuance under either such plan.
4.13.2. Except as disclosed in FSBI DISCLOSURE SCHEDULE 4.13.2, each material Company Compensation and Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been operated and administered in all material respects in accordance with its terms and with all applicable Lawslaw, including including, but not limited to, ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and Securities Act, the Exchange Act, the Age Discrimination in Employment Act, COBRA, the Health Insurance Portability and Accountability Act and any regulations or rules promulgated thereunder, and all material filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law have been timely made or any interest, fines, penalties or other impositions for late filings have been paid in full. With Each Compensation and Benefit Plan which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS, and FSBI is not aware of any circumstances which are reasonably likely to result in revocation of any such favorable determination letter. There is no material pending or, to the Knowledge of FSBI, threatened action, suit or claim relating to any of the Compensation and Benefit Plans (other than routine claims for benefits). Neither FSBI nor any FSBI Subsidiary has engaged in a transaction, or omitted to take any action, with respect to each Company any Compensation and Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could would reasonably be expected to have subject FSBI or any FSBI Subsidiary to an unpaid tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA.
4.13.3. Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.3, no liability, other than PBGC premiums arising in the ordinary course of business, has been or is expected by FSBI or any of its Subsidiaries to be incurred with respect to any FSBI Compensation and Benefit Plan which is a Material Adverse Effectdefined benefit plan subject to Title IV of ERISA (“FSBI Defined Benefit Plan”), or with respect to any “single-employer plan” (as defined in Section 4001(a) of ERISA) currently or formerly maintained by FSBI or any entity which is considered one employer with FSBI under Section 4001(b)(1) of ERISA or Section 414 of the Code (an “ERISA Affiliate”) (such plan hereinafter referred to as an “ERISA Affiliate Plan”). Neither To the Company Knowledge of FSBI and any FSBI Subsidiary, except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.3, no FSBI Defined Benefit Plan had an “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, as of the last day of the end of the most recent plan year ending prior to the date hereof. Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.3, the fair market value of the assets of each FSBI Defined Benefit Plan exceeds the present value of the benefits guaranteed under Section 4022 of ERISA under such FSBI Defined Benefit Plan as of the end of the most recent plan year with respect to the respective FSBI Defined Benefit Plan ending prior to the date hereof, calculated on the basis of the actuarial assumptions used in the most recent actuarial valuation for such FSBI Defined Benefit Plan as of the date hereof; and no notice of a “reportable event” (as defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived has been required to be filed for any FSBI Defined Benefit Plan within the 12-month period ending on the date hereof. Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.3, neither FSBI nor any of its Subsidiaries has provided, or is liable for required to provide, security to any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company FSBI Defined Benefit Plan and Company Benefit Arrangementor to any single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29) of the Code or has taken any action, except as could not or omitted to take any action, that has resulted, or would reasonably be expected to have result in the imposition of a Material Adverse Effectlien under Section 412(n) of the Code or pursuant to ERISA. To the Knowledge of FSBI, and except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.3, there is no pending investigation or enforcement action by any Bank Regulator with respect to any Compensation and Benefit Plan or any ERISA Affiliate Plan. All retirement benefits for Xxxx Xxxxxxxx under the First Savings Supplemental Executive Retirement Plan II was expensed and accrued in the year of Xx. Xxxxxxxx’x retirement from the FSBI Board of Directors.
4.13.4. Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.4, with respect to any FSBI Defined Benefit Plan that is a “multi-employer plan” as such term is defined in section 3(37) of ERISA, covering employees of FSBI or any ERISA Affiliate, (ci) Neither neither the Company nor any ERISA Affiliate has made or suffered a “complete withdrawal” or “partial withdrawal,” as such terms are respectively defined in sections 4203 and 4205 of its Subsidiaries hasERISA, (ii) no event has occurred, and no circumstances exist, that alone or with the passage of time present a material risk of a complete or partial withdrawal, and (iii) neither FSBI or any ERISA Affiliate has any contingent liability under section 4204 of ERISA and no circumstances exist that present a material risk that any such plan will go into reorganization. FSBI DISCLOSURE SCHEDULE 4.13.4 lists FSBI’s best estimate of the amount of withdrawal liability that would be incurred if FSBI and each ERISA Affiliate were to make a complete withdrawal from such plan as of the Effective Time and the aggregate withdrawal liability of FSBI and the ERISA Affiliates, computed as if a complete withdrawal had occurred under each such multi-employer plan on the date hereof would not exceed $3.0 million. FSBI DISCLOSURE SCHEDULE 4.13.4 further sets forth for each such multi-employer plan the amount of “unfunded vested benefits” (within six (6the meaning of section 4211 of ERISA) years prior to as of the end of the most recently completed plan year and as of the date of this Agreement.
4.13.5. Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.5, maintained, sponsored or been all material contributions required to contribute be made under the terms of any Compensation and Benefit Plan or ERISA Affiliate Plan or any employee benefit arrangements to which FSBI or any Pension FSBI Subsidiary is a party or a sponsor have been timely made, and all anticipated contributions and funding obligations are accrued on FSBI’s consolidated financial statements to the extent required by GAAP. FSBI and its Subsidiaries have expensed and accrued as a liability the present value of future benefits under each applicable Compensation and Benefit Plan for financial reporting purposes as required by GAAP.
4.13.6. Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.6, neither FSBI nor any FSBI Subsidiary has any obligations to provide retiree health, life insurance, disability insurance, or other retiree death benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code. There are Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.6, there has been no current communication to employees by FSBI or contingent Liabilities any FSBI Subsidiary that could would reasonably be expected to be imposed upon the Company promise or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliateguarantee such employees retiree health, life insurance, disability insurance, or other retiree death benefits.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement)4.13.7. No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(ein FSBI DISCLOSURE SCHEDULE 4.13.7, FSBI and its Subsidiaries do not maintain any Compensation and Benefit Plans covering employees who are not United States residents.
4.13.8. Except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.8, with respect to each Compensation and Benefit Plan, if applicable, FSBI has provided or made available to PFS copies of the: (A) trust instruments and insurance contracts; (B) two most recent Forms 5500 filed with the IRS; (C) two most recent actuarial report and financial statement; (D) most recent summary plan description; (E) most recent determination letter issued by the IRS; (F) any Form 5310 or Form 5330 filed with the IRS within the last two years; and (G) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests), if applicable.
4.13.9. Except as disclosed in FSBI DISCLOSURE SCHEDULE 4.13.9, the consummation of the Company Disclosure ScheduleMerger will not, no Company Benefit Plan directly or Company Benefit Arrangement contains any provision or is subject to any Law thatindirectly (including, without limitation, as a result of any termination of employment or service at any time prior to or following the Transactions Effective Time) (A) entitle any employee, consultant or upon relateddirector to any payment or benefit (including severance pay, concurrentchange in control benefit, or subsequent employment termination, would (isimilar compensation) increase, accelerate or vest any compensation or benefitincrease in compensation, (iiB) require severance, termination result in the vesting or retention payments or (iii) forgive acceleration of any indebtedness. No Company benefits under any Compensation and Benefit Plan or Company (C) result in any material increase in benefits payable under any Compensation and Benefit Arrangement contains Plan.
4.13.10. Except as disclosed in FSBI DISCLOSURE SCHEDULE 4.13.10, neither FSBI nor any provision FSBI Subsidiary maintains any compensation plans, programs or arrangements under which any payment is subject reasonably likely to any Law that would promise become non-deductible, in whole or provide any in part, for tax gross ups or tax indemnification under Sections 280G or 409A reporting purposes as a result of the Code.
(f) Except as set forth on limitations under Section 3.10(f162(m) of the Company Disclosure ScheduleCode and the regulations issued thereunder.
4.13.11. To the Knowledge of FSBI, no Company Benefit Plan the consummation of the Merger and/or the Bank Merger will not, directly or Company Benefit Arrangement contains any provision or is subject to any Law thatindirectly (including without limitation, as a result of any termination of employment or service at any time prior to or following the Transactions Effective Time), entitle any current or upon relatedformer employee, concurrent, director or subsequent employment termination, would require independent contractor of FSBI or provide any FSBI Subsidiary to any actual or deemed payment (or compensation that would benefit) which could constitute an a “excess parachute payment” under (as such term is defined in Section 280G of the Code), except as set forth in FSBI DISCLOSURE SCHEDULE 4.13.11.
4.13.12. Except as disclosed in FSBI DISCLOSURE SCHEDULE 4.13.12, there are no stock appreciation or similar rights, earned dividends or dividend equivalents, or shares of restricted stock, outstanding under any of the Compensation and Benefit Plans or otherwise as of the date hereof and none will be granted, awarded, or credited after the date hereof.
4.13.13. FSBI DISCLOSURE SCHEDULE 4.13.13 includes a schedule of all termination benefits and related payments that would be payable to the individuals identified thereon, under any and all employment agreements, special termination agreements, change in control agreements, supplemental executive retirement plans, deferred bonus plans, deferred compensation plans, salary continuation plans, or any material compensation arrangement, or other pension benefit or welfare benefit plan maintained by FSBI or any FSBI Subsidiary for the benefit of officers, employee or directors of FSBI or any FSBI Subsidiary (the “Benefits Schedule”), assuming their employment or service is terminated as of June 30, 2004 and the Closing Date occurs on such date and based on the other assumptions specified in such schedule. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical other individuals are entitled to benefits except as required by COBRA or other applicable Lawsunder any such plans.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (First Sentinel Bancorp Inc), Merger Agreement (Provident Financial Services Inc)
Employee Benefit Plans. (a) Section 3.10(a3.16(a) of the Company Seller Disclosure Schedule contains a correct complete and complete accurate list of all material Company Benefit Plans employee compensation, incentive, fringe or benefit plans, programs, policies, commitments, agreements (including, without limitation, all employment, severance, change of control or similar agreements) or other arrangements (whether or not set forth in a written document and material Company Benefit Arrangementsincluding, without limitation, all "employee benefit plans" within the meaning of Section 3(3) of ERISA) maintained or contributed to by Seller or a Seller affiliate covering any active or former employee, director or consultant of Seller (each, a "Seller Employee" and, collectively, the "Seller Employees" which shall, for all purposes of and under this Section 3.16, mean an employee of Seller or a Seller Affiliate (as defined below)), any Subsidiary of Seller or any trade or business (whether or not incorporated) which is a member of a controlled group or which is under common control with Seller within the meaning of Section 414(b), (c) or (m) of the Code (each, a "Seller Affiliate" and, collectively, the "Seller Affiliates") (each, a "Seller Plan" and, collectively, the "Seller Plans"). The Company Seller has provided or made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicablePurchaser: (i) correct and complete copies of all plan documentsdocuments embodying each Seller Plan, including, without limitation, all amendments thereto, all trust documentsdocuments related thereto, insurance contracts, service provider and all material written agreements and amendments contracts related thereto; (ii) written descriptions of the most recent annual reports (Form Series 5500 and all material non-written agreements relating to any such plan schedules and financial statements attached thereto), if any, required under ERISA or arrangementthe Code in connection with each Seller Plan; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries together with the summary(ies) of material modifications thereto, if any, required under ERISA with respect to each Seller Plan; (iv) all IRS determination, opinion, notification and advisory letters with respect to each Seller Plan; (v) all material correspondence to or from any Governmental Authority relating to any Seller Plan; (vi) all material forms and related notices or other communications received from required under the IRSConsolidated Omnibus Budget Reconciliation Act of 1985, Department of Laboras amended, or any other Governmental Authority on or after January 1, 2014with respect to each Seller Plan; (vii) the most recent discrimination tests for each Seller Plan required notices or other written communications to employeesperform such tests; (viii) the most recent actuarial valuations, if any, prepared for each Seller Plan; (ix) if the Seller Plan is funded, the most recent annual and periodic accounting of the assets of each Seller Plan; and (viiix) employee manuals all communication to Seller Employees relating to any Seller Plan and any proposed Seller Plan, in each case, relating to any amendments, terminations, establishments, increases or handbooks containing personnel decreases in benefits, acceleration of payments or employee relations policiesvesting schedules, or other events which would result in any material Liability to Seller or any Seller Affiliate in respect of any Seller Plan.
(b) Each Qualified Seller Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified been maintained and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance compliance with its terms and with the requirements prescribed by any and all Laws applicable Lawsthereto (including, including ERISAwithout limitation, ERISA and the Code). No Action, suit or other litigation (excluding claims for benefits incurred in the Patient Protection and Affordable Care Act (“ACA”ordinary course of Seller Plan activities) and has been brought, or to the Health Insurance Portability and Accountability Act. With knowledge of Seller, is threatened, against or with respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension such Seller Plan. There are no current audits, inquiries or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no proceedings pending or, to the knowledge of the CompanySeller, threatened Actions by the IRS or the United States Department of Labor with respect to any Seller Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Seller Plans have been timely made or accrued. Any Seller Plan intended to be qualified under Section 401(a) of the Code, and each trust intended to qualify under Section 501(a) of the Code (i) has either obtained from the IRS a favorable determination, notification, advisory and/or opinion letter, as applicable, as to its qualified status under the Code, or still has a remaining period of time under applicable treasury regulations or IRS pronouncements in which to apply for such letter and to make any amendments necessary to obtain a favorable determination as to its qualified status under the Code, and (ii) except with respect to amendments for which the Internal Revenue Service has allowed until December 31, 2000, incorporates or has been amended to incorporate all provisions required to comply with the Tax Reform Act of 1986 and subsequent legislation. To the knowledge of Seller, no condition or circumstance exists giving rise to a material likelihood that any such Seller Plan would not be treated by the IRS as qualified under the Code, except as set forth in Section 3.16(b) of the Seller Disclosure Schedule. Seller does not have any plan or commitment to establish any new Seller Plan, to modify any existing Seller Plan (except to the extent required by Law or to conform any such Seller Plan to the requirements of any applicable Law, in each case as previously disclosed to Purchaser in writing, or as required by the terms of any Seller Plan or this Agreement), or to enter into any new Seller Plan. Each Seller Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms, without Liability to Purchaser, Seller or any of the Seller Affiliates (other than routine benefit claims ordinary administration expenses).
(c) Neither Seller, any of its Subsidiaries, nor any of the Seller Affiliates has at any time ever maintained, established, sponsored, participated in, or contributed to any plan subject to Title IV of ERISA or Section 412 of the Code, and proceedings at no time has Seller contributed to or been requested to contribute to any "multiemployer plan," as such term is defined in ERISA. To Seller's knowledge, there are no circumstances which could reasonably be expected to subject Seller, any of its Subsidiaries, or any officer or director of Seller or any of its Subsidiaries, to any material Liability or penalty under Section 4975 through 4980B of the Code or Title I of ERISA. No "prohibited transaction," within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 4975 of the Code and Section 408 of ERISA, has occurred with respect to qualified domestic relations ordersany Seller Plan which could reasonably be expected to subject Seller or any Seller Affiliates to material Liability.
(d) relating Except as set forth in Section 3.16(d) of the Seller Disclosure Schedule, none of the Seller Plans promises or provides retiree medical or other retiree welfare benefits to any Company Benefit Plans person except as required by applicable Law, and neither Seller nor any of its Subsidiaries has represented, promised or Company Benefit Arrangements contracted (including whether in oral or written form) to provide such retiree benefits to any such claim against any fiduciary of any such Company Benefit Plan Seller Employee, former employee, director, consultant or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) other person, except to the extent required by any Governmental Authority (including the IRS and the Department of Labor)applicable Law.
(e) Except Each Seller International Employee Plan (as set forth on Section 3.10(edefined below) of has been established, maintained and administered in compliance in all material respects with its terms and conditions and with the Company Disclosure Schedule, no Company Benefit requirements prescribed by any and all applicable Laws. No Seller International Employee Plan or Company Benefit Arrangement contains any provision or is subject to any Law has unfunded Liabilities that, as a result of the Transactions Closing, will not be offset by insurance or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtednessfully accrued. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA applicable Law, no condition exists that would prevent Seller or other applicable Laws.
(g) Neither Purchaser from terminating or amending any Seller International Employee Plan at any time for any reason. For all purposes of and under this Agreement, the Company nor term "Seller International Employee Plan" shall mean each Seller Plan that has been adopted or maintained by Seller or any of its Subsidiaries hasSubsidiaries, within six (6) years prior to whether informally or formally, for the date benefit of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee employees of the Company Seller or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction who are not United States citizens and who are employed outside of the United States.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Seagate Technology Malaysia Holding Co Cayman Islands), Stock Purchase Agreement (Seagate Technology Holdings)
Employee Benefit Plans. (a) Section 3.10(a3.12(a) of the Company Disclosure Schedule contains Letter sets forth a correct and complete list of: all "employee benefit plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all material other employee benefit plans, programs, agreements, policies, arrangements or payroll practices, including bonus plans, employment, consulting or other compensation agreements, collective bargaining agreements, Company Benefit Stock Plans, individual stock option agreements to which the Company is a party granting stock options to acquire Company Common Stock that have not been granted under a Company Stock Plan, incentive and other equity or equity-based compensation, or deferred compensation arrangements, change in control, termination or severance plans or arrangements, stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and scholarship plans and programs maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributed or is obligated to contribute thereunder for current or former employees of the Company or any of its Subsidiaries (the "Employees") (collectively, the "Company Plans").
(b) Correct and complete copies of the following documents, with respect to each of the Company Plans and material Company Benefit Arrangements. The Company has (other than a Multiemployer Plan), have been delivered or made available to Parent complete and correct copies of by the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementCompany, to the extent applicable: (i) any plans, all plan documents, amendments and attachments thereto and related trust documents, insurance contractscontracts or other funding arrangements, service provider agreements and amendments thereto; (ii) written descriptions of the most recent Forms 5500 and all material non-written agreements relating to any such plan or arrangementschedules thereto and the most recent actuarial report, if any; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reportsmost recent IRS determination letter; (iv) nondiscrimination testing results for the last three (3) yearssummary plan descriptions; and (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesemployees generally.
(bc) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each The Company Benefit Plan and each Company Benefit Arrangement has Plans have been administered in all material respects maintained in accordance with its their terms and with all provisions of ERISA, the Code and other applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company (or any of its Subsidiaries Subsidiaries) nor any "party in interest" or "disqualified person" with respect to the Company Plans has been properly classified for purposes engaged in a non-exempt "prohibited transaction" within the meaning of participation and benefit accrual under each Company Benefit Plan and Company Benefit ArrangementSection 4975 of the Code or Section 406 of ERISA, except as could individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. No fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Plan, except as individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Pacificare Health Systems Inc /De/), Merger Agreement (Unitedhealth Group Inc)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule 5.19 contains a correct true and complete list of all material Company Benefit Plans the following agreements or plans which are presently in effect or which have previously been in effect and material Company Benefit Arrangements. The Company has made available to Parent complete which cover employees of Seller engaged in the Business ("Employees"), including, without limitation, incentive, bonus, vacation and correct copies severance programs:
(i) Any employee benefit plan as defined in Section 3(3) of the following documents Employee Retirement Income Security Act of 1974 ("ERISA") or under which Seller, with respect to each material Company Benefit Plan and material Company Benefit ArrangementEmployees, has any outstanding, present, or future obligation or liability, or under which any Employee has any present or future right to benefits which are covered by ERISA; or
(ii) Any other fringe benefit, pension, profit sharing, retirement, deferred compensation, stock purchase, stock option, stock appreciation, phantom stock or other equity-based, incentive, bonus, performance vacation, termination, retention, change of control, severance, "golden parachute," disability, hospitalization, medical, life insurance, or other employee benefit plan, program, policy, or arrangement, which Seller, with respect to the extent applicable: Business, maintains or to which Seller, with respect to the Business, has any outstanding, present, or future obligations to contribute or make payments under, whether voluntary, contingent, or otherwise. The plans, programs, policies, or arrangements described in subparagraph (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; or (ii) written descriptions of all material non-written agreements relating are hereinafter collectively referred to any such plan or arrangement; (iii) Form 5500 filings for as the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies"Company Benefit Plans."
(b) Each Qualified Plan Seller has complied in all material respects with the continuation coverage requirements of Section 1001 of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and ERISA Sections 601 through 608. Seller shall be responsible for complying with the requirements of Code Section 4980 B and Part 6 of Title 1 of ERISA for its employees (including the Hired Employees, as hereinafter defined) and their "qualified beneficiaries" whose "qualifying event" (as such terms are defined in Code Section 4980 B) occurs on or prior to the Closing Date.
(c) The Seller's Code Section 401(k) plan, together with any related trust, and each trustee or administrator of such plan, are in compliance in all material respects with the requirements prescribed by all applicable statutes or regulations including, without limitation, ERISA and the Code; and such plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by from the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto Seller is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, not aware of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements circumstances (including any amendment) reasonably likely to result in the revocation of such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)favorable determination letter.
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Maxim Group Inc /), Asset Purchase Agreement (Mohawk Industries Inc)
Employee Benefit Plans. (a) Section 3.10(a) of No other corporation or other entity would now or in the past constitute a single employer with the Company Disclosure Schedule contains a correct and complete list within the meaning of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A 414 of the Code.
(fb) Schedule 4.21(b) contains a true and complete list of all of the following agreements or plans, if any, which are presently in effect or which were in effect since January 1, 2014 and which cover or covered current or former employees, directors and/or other service providers of any member of the Company Group (collectively “Participants”):
(i) Any employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and any trust or other funding agency created thereunder, or under which any member of the Company Group, with respect to employees, has any outstanding, present, or future obligation or liability, or under which any employee or former employee has any present or future right to benefits which are covered by ERISA; or
(ii) Any other pension, profit sharing, retirement, deferred compensation, stock purchase, stock option, incentive, bonus, vacation, severance, disability, hospitalization, medical, life insurance, split dollar or other employee benefit plan, program, policy, or arrangement, whether written or unwritten, formal or informal, which the Company maintains or to which the Company has any outstanding, present or future obligations to contribute or make payments under, whether voluntary, contingent or otherwise. The plans, programs, policies, or arrangements described in subparagraph (a) or (b) above are hereinafter collectively referred to as the “Company Plans.” There will be delivered to the Buyer true and complete copies, if any, of all written plan documents and contracts evidencing the Company Plans, as they may have been amended to the date hereof, together with (A) all documents, including without limitation, Forms 5500, relating to any Company Plans required to have been filed prior to the date hereof with governmental authorities for each of the three most recently completed plan years; (B) attorney’s response to an auditor’s request for information for each of the three most recently completed plan years; and (C) financial statements and actuarial reports, if any, for each Company Plan for the three most recently completed plan years.
(c) Except as set forth to those plans identified on Schedule 4.21(c) as tax-qualified Company Plans (the “Company Qualified Plans”), the Company does not maintain or since January 1, 2013, has maintained a Company Plan which meets or was intended to meet the requirements of Section 3.10(f401(a) of the Code. The IRS has issued favorable determination letters to the effect that each Company Disclosure ScheduleQualified Plan qualifies under Section 401(a) of the Code and that any related trust is exempt from taxation under Section 501(a) of the Code, and such determination letters remain in effect and have not been revoked. Copies of the most recent determination letters and any outstanding requests for a determination letter with respect to each Company Qualified Plan, if any, will be delivered to the Buyer. No Company Qualified Plan has been amended since the issuance of the most recent determination letter for such Company Qualified Plan. The Company Qualified Plans currently materially comply in form with the requirements under Section 401(a) of the Code, other than changes required by statutes, regulations and rulings for which amendments are not yet required. To the Company’s Knowledge, no issue concerning qualification of the Company Benefit Plan or Company Benefit Arrangement contains any provision Qualified Plans is pending before or is threatened by the IRS. The Company Qualified Plans have been materially administered according to their terms (except for those terms which are inconsistent with the changes required by statutes, regulations, and rulings for which changes are not yet required to be made, in which case the Company Qualified Plans have been materially administered in accordance with the provisions of those statutes, regulations and rulings) and materially in accordance with the requirements of IRC Section 401(a).Neither the Company nor any fiduciary of any Company Qualified Plan has done anything that would adversely affect the qualified status of the Company Qualified Plans or the related trusts. Any Company Qualified Plan which is required to satisfy Section 401(k)(3) and 401(m)(2) of the Code has been tested for compliance with, and has satisfied the requirements of, Sections 401(k)(3) and 401(m)(2) of the Code for each plan year ending prior to the Closing Date.
(d) The Company is in material compliance with the requirements prescribed by any and all statutes, orders, governmental rules and regulations applicable to the Company Plans and all reports and disclosures relating to the Company Plans required to be filed with or furnished to any Governmental Body, participants or beneficiaries prior to the Closing Date have been or will be filed or furnished in a timely manner and in accordance with applicable Legal Requirements.
(e) No termination or partial termination of any Company Qualified Plan has occurred nor has a notice of intent to terminate any Company Qualified Plan been issued by the Company.
(f) The Company does not maintains and has not maintained an “employee benefit pension plan” within the meaning of ERISA Section 3(2) that is or was subject to Title IV of ERISA.
(g) Any Company Plan can be terminated on or prior to the Closing Date without liability to the Company or the Buyer, including without limitation, any Law thatadditional contributions, penalties, premiums, fees or any other charges as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the extent of funds set aside for such purpose or reflected as reserved for such purpose on the Cut Off date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISAbalance sheet.
(h) The Company Benefit has made full and timely payment of, or has accrued, pending full and timely payment, all amounts which are required under the terms of each of the Company Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in applicable Legal Requirements and Contracts to be paid as a contribution to each Company Plan. The Cut Off Date balance sheet accurately reflects all material respectsobligations for accrued benefits under any non-qualified deferred compensation or supplemental retirement plans.
(i) The Company does not have any past, present or future obligation or liability to contribute to and has not contributed to any multiemployer plan as defined in ERISA Section 3(37).
(j) Neither the Company nor any other “disqualified person” or “party in interest” (as defined in Section 4975 of its Subsidiaries maintains the Code and ERISA Section 3(14), respectively) with respect to the Company Plans, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or ERISA Section 406). The Company and all “fiduciaries” (as defined in ERISA Section 3(21)) with respect to the Company Plans, have materially complied with the requirements of ERISA Section 404.
(k) The Company has maintained materially complied with the continuation coverage requirements of Section 4980B of the Code, Section K, Chapter 100 of the Code and ERISA Sections 601 through 608 (“COBRA”), and with the portability, access and renewability provisions of ERISA Sections 701 through 712.
(l) The Company has not made and is not obligated to make any Benefit nondeductible contributions to any Company Plan.
(m) Other than routine claims for benefits, to the Company’s Knowledge, there are no actions, audits, investigations, suits or claims pending, or threatened against any Company Plan, any trust or other funding agency created thereunder, or against any fiduciary of any Company Plan or Benefit Arrangement covering against the assets of any Company Plan.
(n) The consummation of the transaction contemplated hereby will not accelerate or increase by more than 5% any liability under any Company Plan because of an acceleration or increase of any of the rights or benefits to which Participants may be entitled thereunder.
(o) Other than health continuation coverage required by COBRA, the Company has no obligation to any retired or former employee, director or other service provider or any current employee, director or former employee other service provider of the Company upon retirement or termination of employment.
(p) Except as otherwise disclosed, since January 1, 2016,the Company has not (i) increased the rate of compensation payable or to become payable to any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside employees of the United StatesCompany, other than in the Ordinary Course of Business and consistent with past practice; (ii) made any commitment and has not incurred any liability to any labor union; (iii) paid or agreed to pay any bonuses or severance pay; (iv) increased any benefits or rights under any Company Plan; or (v) adopted any new plan, program, policy or arrangement, which if it existed as of the Closing Date, would constitute a Company Plan.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Event Cardio Group Inc.), Stock Purchase Agreement (Event Cardio Group Inc.)
Employee Benefit Plans. (a) Section 3.10(a4.11(a) of the Company Disclosure Schedule contains sets forth a correct true and complete list of all material each Company Benefit Plans Plan, other than any agreement, understanding or arrangement under which a single individual who is not an officer or director of any of the Company or the Acquired Companies is eligible to receive immaterial compensation and/or benefits and material that is terminable by any of the Company or the Acquired Companies with no more than three (3) months’ written notice (other than as required by Law) without any severance or separation pay due to such individual.
(b) With respect to each Company Benefit Arrangements. The Company has made available to Parent Plan, a complete and correct copies copy of each of the following documents with respect (if applicable) has been made available to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicableParent: (i) the most recent plan documents (or a description, if such plan is not written) and all plan documents, amendments thereto and all related trust documentsagreements, insurance contracts, service provider agreements policies or documentation pertaining to other funding vehicles and all amendments thereto; , (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description description, and all related summaries of material modifications thereto; , (iii) the annual report Forms 5500 (including schedules and attachments) and financial statements as filed for the past two (2) years, (iv) the most recent IRS determination or opinion letter issued with respect to each Company Benefit Plan intended to be qualified under Section 401(a) of the Code, (v) non-discrimination testing reports for each applicable Company Benefit Plan for the past two (2) years, and (vi) all material notices or other communications received from copies of any filings within the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by past three years with the Internal Revenue Service or for the records of the Company Benefit Plan under Revenue Procedure 2021-30 or its predecessor revenue procedures (EPCRS Program), and any filings within the past three years with the Department of Labor under its Voluntary Fiduciary Compliance Program (or predecessor program).
(c) None of the Company or the Acquired Companies or any of their ERISA Affiliates has ever maintained, sponsored, contributed to or been required to contribute to or has any Liability under or with respect to any (i) “IRS”multiemployer plan” as defined in Section 3(37) of ERISA, (ii) “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) subject to the effect that such plan is qualified and funding requirements of Section 412 of the trust related thereto is exempt from federal income taxes under Sections 401(aCode or Title IV of ERISA, (iii) and 501(a), respectively, “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), (iv) “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA) or (v) plan, program, contract, policy, arrangement or agreement that provides for material post-retirement or post-termination health, life insurance or other welfare type benefits except as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code and for which the beneficiary pays the entire cost of coverage. The Company, the Acquired Companies, and their ERISA Affiliates have not incurred and there are no circumstances under which any of them would reasonably be expected to incur any liability under Title IV of ERISA or Section 412 of the Code.
(d) Each Company Benefit Plan that is intended to qualify under Section 401 of the Code is so qualified and has received a current favorable determination or opinion letter from the IRS as to its qualified and, to the knowledge Knowledge of the Company, no act nothing has occurred, whether by action or omission in failure to act, that has adversely affected or would reasonably be expected to adversely affect the operation qualification of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Plan.
(e) The Company Benefit Arrangement has Plans have been maintained, funded and administered in accordance with their terms and in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability ActLaw. With respect to each Company Benefit Plan Plan, all required payments, premiums, contributions, distributions, reimbursements or accruals for all periods (or partial periods) ending prior to or as of the Effective Time shall have been made in all material respects and Company Benefit Arrangementall contributions, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred assessments, premiums, and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable other payments for any penalty period ending on or excise taxes assessable under ACA. Each individual classified as an independent contractor before the Effective Time that are not yet due have been made or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectaccrued in all material respects.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(df) There are no pending or, to the knowledge Knowledge of the Company, threatened Actions in writing any suits, actions, disputes, claims (other than routine benefit claims and for benefits), arbitrations, audits, investigations, administrative or other proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans Plan that would reasonably be expected to result in material liability to the Company or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Acquired Companies.
(eg) Except as set forth on in Section 3.10(e4.11(g) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result the consummation of the Transactions transactions contemplated by this Agreement (alone or upon related, concurrent, or subsequent employment termination, would together with any other event) will not: (i) increase, entitle any person to any benefit under any Company Benefit Plan; (ii) accelerate the time of payment or vest vesting or increase the amount of any compensation or benefit, (ii) require severance, termination or retention payments other benefit due to any person under any Company Benefit Plan; or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide in any payment or compensation that would constitute series of payments by the Company or any of its subsidiaries to any person of an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Code Section 3(40280G) of ERISAor any other payment which is not deductible for federal income tax purposes under the Code.
(h) The Each Company Benefit Plans Plan, and Company Benefit Arrangements have any award thereunder, that is or forms part of a nonqualified deferred compensation plan (within the meaning of and subject to Section 409A of the Code) is in documentary compliance with, and has been documented operated and administered in accordance all material respects in compliance, with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee Code. None of the Company or the Acquired Companies has any of its Subsidiaries that is obligation to provide, and no Company Benefit Plan or was subject other agreement or arrangement provides any individual with the right to, a gross-up, indemnification, reimbursement or other payment for any excise or additional Taxes incurred pursuant to the Laws of any jurisdiction outside Sections 409A or 4999 of the United StatesCode.
Appears in 2 contracts
Samples: Merger Agreement (Wheeler Real Estate Investment Trust, Inc.), Merger Agreement (Cedar Realty Trust, Inc.)
Employee Benefit Plans. (a) Section 3.10(aAll Employee Benefit Plans are listed on Schedule 5.24(a). Seller has delivered to Buyer true and complete copies (or, in the case of any unwritten Employee Benefit Plans, descriptions) of the Company Disclosure Schedule contains a correct and complete list of all material Company Employee Benefit Plans (and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementall amendments thereto), along with, to the extent applicable: , (i1) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; the most recent annual report (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for series) (or, in the last case of the Assumed Plans, the three most recent annual reports) filed with respect to such Employee Benefit Plan, (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v2) the most recent summary plan description and all summaries of material modifications thereto; , distributed with respect to such Employee Benefit Plan, (vi3) all material notices or other communications received from contracts and agreements (and any amendments thereto) relating to the IRSAssumed Plans, Department of Laborincluding, or any other Governmental Authority on or after January 1without limitation, 2014; (vii) required notices or other written communications to employeesall insurance contracts and service provider agreements; and (viii4) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable the most recent determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service with respect to such Employee Benefit Plan.
(the “IRS”b) With respect to the effect that each Assumed Plan: (1) such plan is qualified Assumed Plan was properly and the trust related thereto is exempt from federal income taxes under Sections 401(alegally established; (2) such Assumed Plan is, and 501(a)at all times since inception has been, respectivelymaintained, of the Codeadministered, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan operated and each Company Benefit Arrangement has been administered funded in all material respects in accordance with its terms and in compliance with all applicable Lawsrequirements of all applicable laws, including ERISAstatutes, orders, rules and regulations, including, without limitation, ERISA and the Code; (3) Seller, the Patient Protection all ERISA Affiliates and, to Seller’s Best Knowledge, all other Persons (including, without limitation, all fiduciaries) have, at all times and Affordable Care Act in all material respects, properly performed all of their duties and obligations (“ACA”whether arising by operation of law or by contract) and the Health Insurance Portability and Accountability Act. With under or with respect to each Company Benefit such Assumed Plan, including, without limitation, all reporting, disclosure and notification obligations; (3) all returns, reports (including, without limitation, all Form 5500 series annual reports, together with all schedules and audit reports required with respect thereto), notices, statements and other material disclosures relating to such Assumed Plan required to be filed with any Governmental Body or distributed to any Assumed Plan participant have been properly prepared and Company Benefit Arrangementduly filed or distributed in a timely manner; (4) none of Seller, any ERISA Affiliate or, to Seller’s Best Knowledge, any fiduciary of such Assumed Plan has engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of ERISA or any other applicable law; (i5) to Seller’s Best Knowledge, no non-exempt transaction or event has occurred or is threatened or about to occur (including any of the transactions contemplated in or by this Agreement) that constitutes or could constitute a prohibited by Code transaction under Section 406 or 407 of ERISA or under Section 4975 of the Code for which an exemption is not available; (6) all contributions, premiums and other payments due or required to be paid to (or with respect to) such Assumed Plan for periods ending on or before the Closing Date (including premiums for coverage through the Closing Date) have been or will be timely paid; (7) there has been no amendment, interpretation or other announcement (written or oral) by Seller, any ERISA Section 406 have occurred Affiliate or, to Seller’s Best Knowledge, any other Person relating to, or change in participation or coverage under, such Assumed Plan that could materially increase the expense of maintaining such Assumed Plan (or the Assumed Plans taken as a whole) above the level of expense incurred with respect thereto for the most recent fiscal year included in the Financial Statements; and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company 8) neither Seller nor any ERISA Affiliate has incurred, and there are no existing circumstances in connection with which the Seller, any ERISA Affiliate or Buyer could incur, directly or indirectly, any material liability or expense with respect to such Assumed Plan that would not be customarily associated with the sponsorship and administration of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectsuch Assumed Plan.
(c) Neither the Company Seller nor any of its Subsidiaries hasERISA Affiliate sponsors, within six maintains or contributes to, or has ever sponsored, maintained or contributed to (6) years prior to the date of this Agreement, maintained, sponsored or been required obligated to sponsor, maintain or contribute to any Pension Plan. There are no current to), (1) a multiemployer plan as defined in Section 3(37) or contingent Liabilities that could reasonably be expected to be imposed upon Section 4001(a)(3) of ERISA, (2) a multiple employer plan within the Company or any meaning of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge Section 413 of the CompanyCode or Section 4063 or 4064 of ERISA, threatened Actions (other than routine 3) an employee benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans plan, fund, program, contract or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or arrangement that is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A Section 412 of the Code.
(f) Except as set forth on , Section 3.10(f) 302 of the Company Disclosure Schedule, no Company Benefit Plan ERISA or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result Title IV of the Transactions or upon related, concurrentERISA, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g4) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “a multiple employer welfare arrangement” arrangement as defined in Section 3(40) of ERISA.
(hd) The Company Benefit Plans Each Group Health Plan sponsored, maintained, provided, administered or contributed to by Seller or any ERISA Affiliate is, and Company Benefit Arrangements at all times since inception has been, maintained, administered and operated in compliance in all material respects with all applicable requirements of Parts 6 and 7 of Subtitle B of Title I of ERISA, Section 4980B(f), 9801, 9802 and 9803 of the Code and all other applicable laws, statutes, orders, rules and regulations relating to the provision or continuation of health insurance coverage or other welfare benefits (within the meaning of Section 3(1) of ERISA). Seller, each ERISA Affiliate and, to Seller’s Best Knowledge, each other Person has, at all times and in all material respects, properly performed all of his, her or its duties and obligations (whether arising by operation of law or by contract) under or with respect to each such group health plan, including, without limitation, any notification obligations imposed under Parts 6 or 7 of Subtitle B of Title I of ERISA or Section 4980B(f) or 9801(e) of the Code.
(e) There are no actions, suits or claims (other than routine claims for benefits) pending or, to the knowledge of Seller, threatened with respect to (or against the assets of) any Assumed Plan, nor, to the knowledge of Seller, is there a basis for any such action, suit or claim. No Assumed Plan is currently under investigation, audit or review, directly or indirectly, by any Governmental Body, and, to the knowledge of Seller, no such action is contemplated or under consideration by any Governmental Body.
(f) Schedule 5.24(f) contains a complete and accurate list of all individuals who have been documented and administered elected (or who are eligible to elect) to continue their coverage under Seller’s medical, dental, vision or other group health plan in accordance with Section 409A 4980B(f) of the Code in all material respects(“COBRA”) or similar state law.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Coinstar Inc)
Employee Benefit Plans. (a) The Company Disclosure Letter, under the caption referencing this Section 3.10(a3.15(a), lists all material retirement and pension plans, schemes, practices or arrangements of any kind, whether written or oral, maintained by the Company or its Subsidiaries (now or in the past) or to which the Company or its Subsidiaries makes or has made contributions (other than required solely by statute or regulation) (collectively the "PENSION SCHEMES"). The Company Disclosure Letter, under the caption referencing this Section 3.17(a), lists all material incentive compensation, deferred compensation, profit sharing, stock purchase, stock option, life, health, disability or other insurance plans, severance or separation plans and any other employee benefit plans or practices or arrangements of any kind, whether written or oral, maintained by the Company or its Subsidiaries (now or in the past) or to which the Company or its Subsidiaries makes or has made contributions (other than required solely by statute or regulation) (collectively the "EMPLOYEE BENEFIT PLANS"). Other than the Pension Schemes and Employee Benefit Plans, there are no material arrangements (other than required solely by statute or regulation) to which the Company or its Subsidiaries contributes, or has contributed, or may become liable to contribute under which benefits of any kind are payable to or in respect of the employees of the Company Disclosure Schedule contains a correct and complete list or its Subsidiaries on retirement, death, or in the event of all material Company Benefit Plans and material Company Benefit Arrangements. disability or sickness, termination of employment, or in other similar circumstances.
(b) The Company has made available to Parent complete Buyer true and correct copies (as amended through the date hereof) of all documents constituting or relating to all Pension Schemes and Employee Benefit Plans.
(c) None of the following documents benefits under a Pension Scheme or Employee Benefit Plan has been materially augmented since March 31, 1999, nor will the Company or its Subsidiaries make any commitments to augment materially any such benefits. Except as described in the Company Disclosure Letter under the caption referencing this Section 3.15(c), no condition, agreement or plan provision or, with respect to each material Company Benefit Plan and material Company Benefit Arrangementthe jurisdictions in which the Company's employees are located, to rule of law, statute or common law doctrine of "acquired rights" materially limits the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, right of the CodeCompany or its Subsidiaries to amend, andcut back or terminate any Pension Scheme or Employee Benefit Plan, to nor will the knowledge transaction contemplated by this Agreement materially limit the right of the Company, its Subsidiaries, or the Buyer to amend, cut back or terminate any Pension Scheme or Employee Benefit Plan.
(d) The Company and each of its Subsidiaries has not received any notice or directive that it has not complied with all material provisions of the Pension Schemes applicable to it and has no act Knowledge of any reason why the tax exempt (or omission favored) status, if any, of any of the Pension Schemes or Employee Benefit Plans might be withdrawn.
(e) There are not in respect of any Pension Scheme or Employee Benefit Plan or the benefits thereunder any actions, suits or claims pending or, to the Knowledge of the Company or any of its Subsidiaries, threatened (other than routine claims for benefits or such actions, suits or claims that would not, individually or in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Lawsaggregate, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Company Material Adverse Effect. Neither ).
(f) Where applicable, except where any failure would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) all contributions to each Pension Scheme have at all times been made in accordance with the recommendations of the actuary to that Pension Scheme, (ii) a proper accrual has been made for those contributions which are due to each Pension Scheme or Employee Benefit Plan on or before the Effective Date, (iii) each of the Pension Schemes is fully funded on an accrued benefits basis, and (iv) the contributions and expenses payable to the Pension Schemes have been applied in accordance with the provisions thereof and the trusts upon which they are to be held.
(g) With respect to any Pension Scheme or Employee Benefit Plan that is subject to the United States Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (i) there have been no prohibited transactions, except those that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, and (ii) neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor Subsidiaries, directors, officers, employees or other non-employee classification "fiduciaries," as such term is defined in Section 3(21) of ERISA, have committed any breach of fiduciary responsibility imposed by ERISA or any other applicable law with respect to the Company plans which would subject the Company, Subsidiary, Buyer, or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual directors, officers or employees to any liability under each Company Benefit Plan and Company Benefit ArrangementERISA or any applicable law, except as could not any breach that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans does not contribute (and Company Benefit Arrangements have been documented and administered has not ever contributed) to any multiemployer plan, as defined in accordance with Section 409A 3(37) of the Code in all material respects.
(i) ERISA. Neither the Company nor any of its Subsidiaries maintains has any potential liability for death or has maintained any Benefit Plan medical benefits after separation from employment other than (i) death benefits under the employee benefit plans or Benefit Arrangement covering any current or former employee of programs set forth under the caption referencing this Section 3.15 in the Company Disclosure Letter and (ii) health care continuation benefits (COBRA benefits) described in Section 601 et. seq. of ERISA or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United Statesother applicable state law.
Appears in 2 contracts
Samples: Acquisition Agreement (Adc Telecommunications Inc), Acquisition Agreement (Saville Systems PLC)
Employee Benefit Plans. (a) Section 3.10(a3.13(a) of the Company MSLO Disclosure Schedule contains sets forth as of the date of this Agreement a correct true and complete list of each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and all material Company stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit plans, agreements, programs, policies or other arrangements, 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), whether formal or informal, written, legally binding or not, under which any employee or former employee of MSLO or its Subsidiaries has any present or future right to benefits or MSLO or its Subsidiaries has any direct or contingent liability (each, a “MSLO Benefit Plans and material Company Plan”). With respect to each such MSLO Benefit Arrangements. The Company Plan, MSLO has made available to Parent Sequential a true and complete and correct copies copy of such MSLO Benefit Plan, if written, or a description of the following documents with respect to each material Company terms of such MSLO Benefit Plan if not written, and material Company Benefit Arrangement, to the extent applicable: (i) all plan documentstrust agreements, trust documents, insurance contracts, service provider agreements and amendments theretoor other funding arrangements; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangementthe most recent actuarial and trust reports for both ERISA funding and financial statement purposes; (iii) the two most recent Form 5500 filings for the last three (3) years, including with all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) attachments required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by have been filed with the Internal Revenue Service (the “IRS”) to or the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, Department of the Code, and, to the knowledge of the Company, no act Labor or omission any similar reports filed with any comparable Governmental Entity in the operation of such plan has occurred that could adversely affect its qualified status. Each Company any non-U.S. jurisdiction having jurisdiction over any MSLO Benefit Plan and each Company all schedules thereto; (iv) the most recent IRS determination or opinion letter; and (v) all current summary plan descriptions.
(b) Each MSLO Benefit Arrangement Plan has been administered maintained in all material respects in accordance with its terms and with all the requirements of applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACALaw. Each individual classified as an independent contractor or other non-employee classification by the Company or any of MSLO and its Subsidiaries has been properly classified for purposes of participation and benefit accrual performed all material obligations required to be performed by it under each Company any MSLO Benefit Plan and Company Benefit Arrangementand, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date knowledge of this AgreementMSLO, maintained, sponsored is not in any material respect in default under or been required to contribute to in violation of any Pension MSLO Benefit Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon No material action (other than claims for benefits in the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(dordinary course) There are no is pending or, to the knowledge of the CompanyMSLO, threatened Actions (other than routine benefit claims and proceedings with respect to any MSLO Benefit Plan.
(c) Each MSLO Benefit Plan that is intended to be qualified domestic relations ordersunder Section 401(a) relating of the Code has received a determination or opinion letter from the IRS that it is so qualified and each related trust that is intended to any Company Benefit Plans be exempt from federal income taxation under Section 501(a) of the Code has received a determination or Company Benefit Arrangements (including any opinion letter from the IRS that it is so exempt and, to the knowledge of MSLO, no fact or event has occurred since the date of such claim against any fiduciary letter or letters from the IRS that could reasonably be expected to adversely affect the qualified status of any such Company MSLO Benefit Plan or Company Benefit Arrangement). the exempt status of any such trust.
(d) No Company MSLO Benefit Plan is subject to Title IV of ERISA, is a multiemployer plan (within the meaning of Section 3(37) of ERISA) or Company Benefit Arrangement has received notice provides post-employment welfare benefits except to the extent required by Section 4980B of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Code.
(e) Except as set forth on Section 3.10(e) Any arrangement of the Company Disclosure Schedule, no Company Benefit Plan MSLO or Company Benefit Arrangement contains any provision or of its Subsidiaries that is subject to any Law that, as a result Section 409A of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest Code has complied in form and operation with the requirements of Section 409A of the Code as in effect from time to time. Neither MSLO nor any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive of its Subsidiaries has any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains obligation to provide any provision or is subject gross-up payment to any Law that would promise individual with respect to any income Tax, additional Tax, excise Tax or provide any tax gross ups interest charge imposed pursuant to Section 409A or tax indemnification under Sections 280G or 409A 4999 of the Code.
(f) Except as set forth on in Section 3.10(f3.13(f) of the Company MSLO Disclosure Schedule, no Company the consummation of the transactions contemplated hereby will not, either alone or in combination with another event, (i) entitle any current or former director, officer or employee of MSLO or of any of its Subsidiaries to severance pay, unemployment compensation or any other payment; (ii) result in any payment becoming due, accelerate the time of payment or vesting, or increase the amount of compensation due to any such director, officer or employee; (iii) result in any forgiveness of indebtedness, trigger any funding obligation under any MSLO Benefit Plan or Company impose any restrictions or limitations on MSLO rights to administer, amend or terminate any MSLO Benefit Arrangement contains Plan; or (iv) result in any provision payment (whether in cash or is subject property or the vesting of property) to any Law that“disqualified individual” (as such term is defined in Treasury Regulations Section 1.280G-1) that could reasonably be expected, as a result of the Transactions individually or upon relatedin combination with any other such payment, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would to constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40280G(b)(1) of ERISAthe Code).
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Martha Stewart Living Omnimedia Inc), Merger Agreement (Sequential Brands Group, Inc.)
Employee Benefit Plans. (a) Section 3.10(a) of the The Company Disclosure Schedule contains a correct true and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies each "employee benefit plan" (within the meaning of section 3(3) of the following documents with respect to each material Company Benefit Plan Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (including, without limitation, multiemployer plans within the meaning of Section 3(37) of ERISA)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and material Company Benefit Arrangementall other employee benefit plans, to the extent applicable: (i) all plan documentsagreements, trust documentsprograms, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements policies or other arrangements relating to compensation, benefits or entitlements, whether or not subject to ERISA (including any such plan funding mechanism therefor now in effect or arrangement; (iii) Form 5500 filings for required in the last three (3) yearsfuture as a result of the Transactions or otherwise), including all schedules theretowhether formal or informal, annual reportoral or written, financial statements and legally binding or not under which any related actuarial reports; (iv) nondiscrimination testing results for employee or former employee or director or former director of the last three (3) years; (v) the most recent summary plan description and summaries Company or any of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Laborits Subsidiaries, or any other Governmental Authority on consultant or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) independent contractor to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act Company or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for Subsidiaries, has any penalty present or excise taxes assessable future right to benefits or under ACA. Each individual classified as an independent contractor or other non-employee classification by which the Company or any of its Subsidiaries has been properly classified for purposes of participation any present or future liability. All such plans, agreements, programs, policies and benefit accrual under arrangements are herein collectively referred to as the "Company Plans."
(b) With respect to each Company Benefit Plan Plan, the Company has delivered or made available to Parent a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable, (i) any related trust agreement, annuity contract or other funding instrument; (ii) the most recent IRS determination letter; (iii) the current summary plan description and other written communications (or a description of any oral communications) by the Company Benefit Arrangement, except as could not reasonably be expected to have its employees concerning the extent of the benefits provided under a Material Adverse EffectCompany Plan; and (iv) for the three most recent years (A) the Form 5500 and attached schedules; (B) audited financial statements; (C) actuarial valuation reports; and (D) attorney's response to an auditor's request for information.
(c) Neither Each Company Plan has been established and administered in material compliance with its terms and with the applicable provisions of ERISA, the Code and other applicable laws, rules and regulations (including the applicable laws, rules and regulations of any foreign jurisdiction), in each case, in all material respects. Each Company Plan that is intended to be qualified within the meaning of Code Section 401(a) is so qualified and has received a favorable determination letter as to its qualification and to the Knowledge of the Company nor any nothing has occurred, whether by action or failure to act, which would cause the loss of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plansuch qualification. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with With respect to any Pension Plan maintained by an ERISA Affiliate.
Company Plan, no actions, suits or claims (dother than routine claims for benefits in the ordinary course) There are no pending or, to the knowledge best Knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect threatened; to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) Knowledge of the Company Disclosure Schedule, no Company Benefit Plan facts or Company Benefit Arrangement contains any provision or is subject circumstances exist which could give rise to any Law thatsuch actions, as a result suits or claims and the Company will promptly notify Parent in writing of any pending claims or, to the Knowledge of the Transactions or upon relatedCompany, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.threatened claims
Appears in 2 contracts
Samples: Merger Agreement (Axys Pharmaceuticals Inc), Merger Agreement (Applera Corp)
Employee Benefit Plans. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedule contains Letter sets forth a correct true and complete list of all each material Company Benefit Plans and material Company Benefit ArrangementsPlan. The Company has delivered or made available to Parent a true, correct and complete and correct copies copy of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementand, to the extent with respect thereto, if applicable: , (i) all plan documentsamendments, trust documents(or other funding vehicle) agreements, summary plan descriptions and insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of the three (3) most recent annual reports (Form 5500 series including, where applicable, all material non-written agreements relating to any such plan or arrangement; schedules and actuarial and accountants’ reports), (iii) Form 5500 the three (3) most recent actuarial reports or other financial statements, (iv) the most recent determination letter or opinion letter, if any, issued by the IRS, and any pending request for such a letter, with respect to any Company Benefit Plan intended to be qualified under Section 401(a) of the Code, (v) all material filings for and correspondence with any Governmental Authority within the last prior three (3) years, including all schedules theretofilings under the IRS’ Employee Plans Compliance Resolution System Program or any of its predecessors, annual reportthe U.S. Department of Labor Delinquent Filer Voluntary Program or other government correction program relating to any Company Benefit Plan, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices written contracts, instruments or other communications received from the IRSagreements relating to each Company Benefit Plan, Department of Laborincluding administrative service agreements, or any other Governmental Authority on or after January 1investment management agreements, 2014; (vii) required notices or other written communications to employees; collective bargaining agreements and (viii) employee manuals or handbooks containing personnel or employee relations policiesgroup insurance contracts.
(b) Each Qualified Plan has received a favorable determination letterExcept (i) with respect to obligations under the employment agreements identified in Section 4.10(a) of the Company Disclosure Letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”ii) with respect to the effect that such plan is qualified conversion of Company Restricted Stock and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects Performance Shares in accordance with its terms Section 3.3, or (iii) as individually or in the aggregate, have not had and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could would not reasonably be expected to have a Company Material Adverse Effect, none of the Company, any Company Subsidiary or any of their respective ERISA Affiliates has incurred any obligation or liability with respect to or under any Company Benefit Plan, which has created or will create any obligation with respect to, or has resulted in or will result in any liability to Parent, Merger Sub or any of their respective subsidiaries.
(c) Except as individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Benefit Plan complies in form and has been maintained and administered in accordance with its terms and in compliance with all applicable Laws, including ERISA and the Code (including Section 409A of the Code).
(d) Except as individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code has either received a favorable determination letter from the IRS as to its qualified status or may rely upon an opinion letter for a prototype plan, and nothing has occurred, whether by action or failure to act, that caused or could reasonably be expected to cause the loss of such qualified status of any such Company Benefit Plan or the imposition of any penalty or Tax liability.
(e) There has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code and other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan, except for any such transactions that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(df) There are is no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Action against the Company Benefit Plans Plans, the trustee thereof or the assets of any of the trusts under such Company Benefit Arrangements (including any such claim Plans, or against any fiduciary of any such the Company Benefit Plan or Plans with respect to the Company Benefit Arrangement). No Company Benefit Plan Plans, or Company Benefit Arrangement has received notice of an audit against any ERISA Affiliate, any employee, officer, director, stockholder or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) other service provider of the Company Disclosure Scheduleor any Company Subsidiary (whether current, no former or retired) with respect to the Company Benefit Plan or Company Benefit Arrangement contains Plans (in each case, other than routine non-material claims for benefits and appeals of such claims), except for any provision or is subject to any Law such Actions that, as individually or in the aggregate, have not had and would not reasonably be expected to have a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable LawsMaterial Adverse Effect.
(g) Neither With respect to each of the Company Benefit Plans, except as individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect: (i) all payments required by each Company Benefit Plan, any collective bargaining agreement or other agreement, or by Law (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been made or provided for by the Company or a Company Subsidiary in accordance with the provisions of each of the Company Benefit Plans, applicable Law and GAAP; (ii) no Company Benefit Plan is under, and neither the Company nor any of its Subsidiaries hashas received any notice of, within six an audit or investigation by the IRS, Department of Labor or any other Governmental Entity, and no such completed audit, if any, has resulted in the imposition of any Tax or penalty; and (6iii) years prior with respect to each Company Benefit Plan that is funded mostly or partially through an insurance policy, none of the Company, its Subsidiaries or any ERISA Affiliate has any liability in the nature of retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring on or before the date of this AgreementAgreement or is reasonably expected to have such liability with respect to periods through the Effective Time.
(h) No Company Benefit Plan is, and none of the Company, any Company Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever maintained, sponsoredcontributed to, or been required participated in, or otherwise has any obligation or liability in connection with: (i) a “pension plan” under Section 3(2) of ERISA that is subject to contribute to any Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (ii) a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code), (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA.
), (hiv) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered a “multiple employer plan” (as defined in accordance with Section 409A 413(c) of the Code Code) or (v) a “single-employer plan” (as defined in all material respectsSection 4001(a)(15) of ERISA) which is subject to Sections 4063, 4064 or 4069 of ERISA.
(i) Neither Except to the extent required by applicable Law and except as individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect and except as set forth in Section 4.10(i) of the Company nor any of its Subsidiaries maintains or has maintained any Disclosure Letter, no Company Benefit Plan provides any retiree or post-employment health or welfare benefits to any Person. Except as individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, the Company, each Company Subsidiary and each of their respective ERISA Affiliates is in compliance with (i) the requirements of the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations (including proposed regulations) thereunder and any similar state Law, (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations (including the proposed regulations) thereunder and (iii) the applicable requirements of the Patient Protection and Affordable Care Act and the regulations (including the proposed regulations) thereunder.
(j) Except as set forth in Section 4.10(j) of the Company Disclosure Letter, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will, individually or together with the occurrence of any other event, including a termination of any employee, officer, director, stockholder or other service provider of the Company or a Company Subsidiary (whether current, former or retired) or their beneficiaries: (i) result in any liability under any Company Benefit Arrangement covering Plan, including any current payment becoming due to any Company Employee or former employee other service provider of the Company or any Company Subsidiary or their beneficiaries, (ii) increase or otherwise enhance any benefits otherwise payable by the Company or any Company Subsidiary or the amount of its Subsidiaries compensation due to any Company Employee or other service provider of the Company or any Company Subsidiary or their beneficiaries or (iii) result in the acceleration of the time of payment or vesting of any such benefits or the funding of any such compensation or benefits. Section 4.10(j) of the Company Disclosure Letter sets forth the estimated maximum amount or value of each such payment or number of vested shares.
(k) Except as set forth in Section 4.10(k) of the Company Disclosure Letter, no amount that could be received (whether in cash or property or the vesting of property) as a result of the Mergers or any of the other transactions contemplated hereby (alone or in combination with any other event) by any Person who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any Company Benefit Plan or other compensation arrangement would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code.
(l) Except as set forth in Section 4.10(l) of the Company Disclosure Letter or as individually or in the aggregate have not had, and would not reasonably be expected to have, a Company Material Adverse Effect, neither the Company nor any Company Subsidiary has unfunded liabilities pursuant to any Company Benefit Plan that is not intended to be qualified under Section 401(a) of the Code and is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, a nonqualified deferred compensation plan or was an excess benefit plan.
(m) Except as set forth in Section 4.10(m) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to or has any obligation under any Contract or Company Benefit Plan to compensate any Person for any taxes imposed pursuant to Section 4999 of the Code or Section 409A of the Code.
(n) Except as individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each individual providing services to the Company, the Company Subsidiaries and their respective ERISA Affiliates has been properly classified by such entity as an employee or independent contractor with respect to each such entity for all purposes under applicable Law and the Company Benefit Plans, (ii) the Company and the Company Subsidiaries have no liability by reason of an individual who performs or performed services for the Company or the Company Subsidiaries in any capacity being improperly excluded from participating in a Company Benefit Plan and (iii) each employee of the Company and the Company Subsidiaries has been properly classified as “exempt” or “non-exempt” under applicable Law.
(o) None of the Company, the Company Subsidiaries, any ERISA Affiliate, or any officer or director, or to the knowledge of the Company, any stockholder or other service provider of the Company or any Company Subsidiary has made any promises or commitments, whether legally binding or not, to create any additional material Company Benefit Plan, agreement or arrangement, or to modify or change in any material way any existing Company Benefit Plan.
(p) Except as individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any Company Subsidiary has sponsored, maintained, participated in, contributed to, or has been required to sponsor, maintain, participate in or contribute to, any employee benefit plan, program or other arrangement providing compensation or benefits to any services provider (or any dependent thereof) which is subject to the Laws laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (CapLease, Inc.)
Employee Benefit Plans. (a) Section 3.10(a3.12(a) of the Company Disclosure Schedule contains Letter sets forth a correct and complete list of: all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and all material other employee benefit plans, programs, agreements, policies, arrangements or payroll practices, including bonus plans, employment, consulting or other compensation agreements, collective bargaining agreements, Company Benefit Stock Plans, Mogul Sub Stock Plans, individual stock option agreements to which the Company is a party granting stock options to acquire Company Common Stock that have not been granted under a Company Stock Plan, incentive and other equity or equity-based compensation, or deferred compensation arrangements, change in control, termination or severance plans or arrangements, stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and scholarship plans and programs maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributed or is obligated to contribute thereunder for current or former employees of the Company or any of its Subsidiaries (the “Employees”) (collectively, the “Company Plans”).
(b) Correct and complete copies of the following documents, with respect to each of the Company Plans and material Company Benefit Arrangements. The Company has (other than a Multiemployer Plan), have been delivered or made available to Parent complete and correct copies of by the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementCompany, to the extent applicable: (i) any plans, all plan documents, amendments and attachments thereto and related trust documents, insurance contractscontracts or other funding arrangements, service provider agreements and amendments thereto; (ii) written descriptions of the most recent Forms 5500 and all material non-written agreements relating to any such plan or arrangementschedules thereto and the most recent actuarial report, if any; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reportsmost recent IRS determination letter; (iv) nondiscrimination testing results for the last three (3) yearssummary plan descriptions; and (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesemployees generally.
(bc) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each The Company Benefit Plan and each Company Benefit Arrangement has Plans have been administered in all material respects maintained in accordance with its their terms and with all provisions of ERISA, the Code and other applicable Laws, including ERISA, and neither the Code, the Patient Protection and Affordable Care Act Company (nor any of its Subsidiaries) nor any “ACA”) and the Health Insurance Portability and Accountability Act. With party in interest” or “disqualified person” with respect to each the Company Benefit Plan and Company Benefit Arrangement, (i) no Plans has engaged in a non-exempt transactions “prohibited by Code transaction” within the meaning of Section 4975 of the Code or ERISA Section 406 of ERISA, except as individually or in the aggregate have occurred not had and (ii) no act or omission has occurred that could would not reasonably be expected to have a Company Material Adverse Effect. No fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Plan, except where the failure to comply individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(d) The Company Plans intended to qualify under Section 401 of the Code are so qualified and any trusts intended to be exempt from Federal income taxation under Section 501 of the Code are so exempt, except where the failure to comply individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(e) None of the Company, its Subsidiaries or any trade or business (whether or not incorporated) that is treated as a single employer, with any of them under Section 414(b), (c), (m) or (o) of the Code has any current or contingent liability with respect to (i) a plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code or (ii) any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA). Each Company Plan that is intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of Subtitle A of the Code meets such requirements, with such exceptions that individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(f) All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Company Plans (including workers compensation) or by Law (without regard to any waivers granted under Section 412 of the Code), to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension).
(g) There are no pending actions, claims or lawsuits that have been asserted or instituted against the Company Plans, the assets of any of the trusts under the Company Plans or the sponsor or administrator of any of the Company Plans, or against any fiduciary of the Company Plans with respect to the operation of any of the Company Plans (other than routine benefit claims), nor does the Company have any Knowledge of facts that could form the basis for any such action, claim or lawsuit, other than such actions, claims or lawsuits that individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(h) None of the Company Plans provides for post-employment life or health insurance, benefits or coverage for any participant or any beneficiary of a participant, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or applicable state law, and at the expense of the participant or the participant’s beneficiary. Each of the Company and any ERISA Affiliate which maintains a “group health plan” within the meaning of Section 5000(b)(1) of the Code has complied with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder, except where the failure to comply individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(i) Except as set forth in Section 3.12(i) of the Company Disclosure Letter (to the extent applicable, in each case broken down as to each item, and the individual and amount involved), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, including the Company Stockholder Approval or the Merger, will (i) result in any payment becoming due to any Employee, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment or vesting of any such benefits under any Company Plan or (iv) result in any obligation to fund any trust or other arrangement with respect to compensation or benefits under a Company Plan. Except as set forth in Section 3.12(i) of the Company Disclosure Letter, since November 1, 2005, the Company, including the Company Board, any committee thereof and any officer of the Company, has not taken any action to increase the compensation or benefits payable after the date hereof to any officer having the title of senior vice president or higher of the Company.
(j) Neither the Company nor any of its Subsidiaries has a contract, plan or commitment, whether legally binding or not, to create any additional Company Plan or to modify any existing Company Plan, except as required by applicable Law or tax qualification requirement.
(k) Any individual who performs services for the Company or any of its Subsidiaries (other than through a contract with an organization other than such individual) and who is not treated as an employee of the Company or any of its Subsidiaries for Federal income tax purposes by the Company or any of its Subsidiaries is not an employee for such purposes, except as individually or in the aggregate, together with any breach or breaches of Section 3.12(c) hereof (without regard to any materiality or Company Material Adverse Effect qualifiers therein), has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(l) Neither the Company nor any of its Subsidiaries is liable for a party to any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor contract, agreement or other non-employee classification by arrangement providing for the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary payment of any such Company Benefit Plan amount which would not be deductible by reason of Section 162(m) or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(fm) Except All Nonqualified Deferred Compensation Plans (as set forth on defined in Code Section 3.10(f409A(d)(1)) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of and its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined are in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance material compliance with Code Section 409A of and neither the Code Plans nor this transaction will cause a participant in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was such Plans to be subject to the Laws of any jurisdiction outside of the United Statestax imposed by Code Section 409A(a)(1)(B).
Appears in 2 contracts
Samples: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (NWH Inc)
Employee Benefit Plans. (ai) All material “employee benefit plans” (within the meaning of Section 3.10(a3(3) of the Company Disclosure Schedule contains Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), but excluding any plan that is a correct “multiemployer plan” as defined in Section 3(37) of ERISA (“Multiemployer Plan”), deferred compensation, change in control or employment, vacation, fringe benefit, incentive, bonus, stock option, stock purchase, or restricted stock plans, programs, agreements or policies contributed to or maintained by any Group Member or with respect to which any Group Member has or is reasonably expected to have any liability for the benefit of any current or former employee, officer, consultant, independent contractor or director of any Group Member (such persons, collectively, “Group Employees”, and complete list of all material Company such plans, programs, agreements and policies, collectively, the “Benefit Plans”), other than those Benefit Plans and material Company disclosed in the SEC Filings filed prior to the date hereof or required by the Laws of the applicable jurisdictions to be so maintained, are set forth on Schedule 2.1(o)(i).
(ii) With respect to each Benefit Arrangements. The Company Plan, Holdings has made available to Parent Buyer a true and complete and correct copies copy thereof (or, if a plan is not written, a written summary of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementterms thereof) and, to the extent applicable: , (iv) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; trust or custodial agreement or other funding instrument, (iv) nondiscrimination testing results for the last three (3) years; (vw) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualificationif any, issued by received from the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively(x) any current summary plan description or employee handbook, (y) for the most recently completed year (A) the Form 5500 and attached schedules or comparable foreign filing or report, (B) audited financial statements and (C) actuarial valuation reports and (z) copies of any material correspondence from the CodeIRS, andSEC, Pension Benefit Guaranty Corporation, Department of Labor or any comparable foreign Governmental Authority relating to the knowledge of the Company, no act or omission in the operation of such plan Benefit Plan.
(iii) Each Benefit Plan has occurred that could adversely affect its qualified status. Each Company been established and administered and is in compliance with the terms of such Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, except where the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could failure thereof would not reasonably be expected expected, individually or in the aggregate, to have a Material Adverse Effect.
(civ) Neither Each Benefit Plan that is intended to be qualified under section 401(a) of the Company nor any Internal Revenue Code of its Subsidiaries has1986, within six as amended (6) years prior the “Code”), has received a favorable determination letter regarding such qualification from the IRS and, to the date Knowledge of this AgreementHoldings, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities nothing has occurred that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any adversely affect such qualification. The Hertz (UK) 1972 Pension Plan UK Plan has been registered and has been maintained by an ERISA Affiliatein good standing with all applicable United Kingdom Governmental Authorities, and, to the Knowledge of Holdings, nothing has occurred that could reasonably be expected to adversely affect such status.
(dv) There are no pending or, to the Knowledge of Holdings, threatened claims or litigation with respect to any Benefit Plans, other than ordinary and usual claims for benefits by participants and beneficiaries or that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(vi) Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (x) no Group Member has incurred any liability under Title IV of ERISA that has not been satisfied in full and (y) to the knowledge of the CompanyHoldings, threatened Actions no condition exists that is likely to cause any Group Member to incur any such liability (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company liability for premiums due the Pension Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of LaborGuaranty Corporation).
(evii) Except as set forth on Section 3.10(e) Schedule 2.1(o)(vii), no Benefit Plan exists that provides that the execution of this Agreement or the consummation of the Company Disclosure Scheduletransactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events) result in any payment, no Company Benefit Plan acceleration, vesting, distribution, increase in benefits or Company Benefit Arrangement contains any provision or is subject obligation to fund benefits with respect to any Law that, as a result of the Transactions or upon related, concurrentGroup Employee under any Benefit Plan, or subsequent employment termination, would (i) increase, accelerate will result in the triggering or vest imposition of any compensation restrictions or benefit, (ii) require severance, termination limitations on the right of any Group Member to amend or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained terminate any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United StatesPlan.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Hertz Corp), Stock Purchase Agreement (Ford Motor Co)
Employee Benefit Plans. (a) Section 3.10(a) 2.20 of the Company Disclosure Schedule contains a correct true and complete list of all material the following agreements or plans which are presently in effect or which have previously been in effect and which cover employees of the Company ("Employees"):
(i) Any employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"), and any trust or other funding agency created thereunder, or under which the Company, with respect to the Employees, has any outstanding, present, or future obligation or liability, or under which any Employee or former Employee has any present or future right to benefits which are covered by ERISA; or
(ii) Any other pension, profit sharing, retirement, deferred compensation, stock purchase, stock option, incentive, bonus, vacation, severance, disability, hospitalization, medical, life insurance, or other employee benefit plan, program, policy, or arrangement, whether written or unwritten, formal or informal, which the Company, with respect to the Business, maintains or to which the Company, with respect to the Business, has any outstanding, present, or future obligations to contribute or make payments under, whether voluntary, contingent, or otherwise. The plans, programs, policies, or arrangements which are described in subparagraph (i) or (ii) above and which are listed on Section 2.20 of the Disclosure Schedule are hereinafter collectively referred to as the "Company Benefit Plans and material Company Benefit Arrangements. Plans." The Company has made available delivered to Parent the Investors true and complete and correct copies of all written plan documents and contracts evidencing the following Company Benefit Plans, as they may have been amended to the date hereof, together with (A) all documents relating to any tax-qualified retirement plan maintained by the Company, which documents are required to have been filed prior to the date hereof with respect governmental authorities for each of the three most recently completed plan years; (B) attorney's response to an auditor's request for information for each material of the three most recently completed plan years; and (C) financial statements for each Company Benefit Plan and material Company Benefit Arrangement, to for each of the extent applicable: (i) all three most recently completed plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan Except for the Company Benefit Plans, the Company does not now maintain, nor has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission Company at any time in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has past been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect obligated to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide make any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan contribution to any pension, retirement, profit-sharing, deferred compensation, stock purchase, stock option, bonus or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA incentive plan, any medical, vision, dental, or other applicable Laws.
(g) Neither the Company nor health plan, any of its Subsidiaries haslife insurance plan, within six (6) years prior to the date of this Agreementvacation, maintainedseverance, sponsoreddisability, or been required to contribute to any “multiple employer welfare other employee benefit plan, program, policy, or arrangement” , whether written, unwritten, formal, or informal, including, without limitation, any "employee benefit plan" as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.3(3)
Appears in 2 contracts
Samples: Series a Redeemable Preferred Stock and Warrant Purchase Agreement (Transeastern Properties Inc), Series B Redeemable Preferred Stock and Warrant Purchase Agreement (Transeastern Properties Inc)
Employee Benefit Plans. (a) Section 3.10(a) Except as disclosed in the Company SEC Reports or as set forth in Schedule 5.10 of the Company Disclosure Schedule contains a correct Schedule, there are no employee benefit, compensation or severance plans, agreements or arrangements, including "employee benefit plans," as defined in Section 3(3) of Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementincluding, to the extent applicable: (i) all plan documentsbut not limited to, trust documentsplans, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements or arrangements relating to any such plan former employees, including, but not limited to, retiree medical plans or arrangement; (iii) Form 5500 filings for the last three (3) yearspost-employment life insurance plans, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification maintained by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected or collective bargaining agreements to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon which the Company or any of its Subsidiaries is a party (together, the "Company Benefit Plans"). To the knowledge of the Company, no default exists with respect to the obligations of the Company or any Pension Plan maintained of its Subsidiaries under such Company Benefit Plans. Since December 31, 1998, there have been no disputes or grievances subject to any grievance procedure, unfair labor practice proceedings, arbitration or litigation occurring or threatened under such Company Benefit Plans, which have not been finally resolved, settled or otherwise disposed of, nor is there any default, or any condition which, with notice or lapse of time or both, would constitute such a default, under any such Company Benefit Plans, by an ERISA Affiliate.
(d) There are no pending the Company or its Subsidiaries or, to the knowledge of the CompanyCompany and its Subsidiaries, any other party thereto. Since December 31, 1998, there have been no strikes, lockouts or work stoppages or slowdowns, or to the knowledge of the Company and its Subsidiaries, jurisdictional disputes or organizing activity occurring or threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any the business or operations of the Company Benefit Plans or its Subsidiaries. Except as disclosed in the Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan SEC Reports or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) in Schedule 5.10 of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result neither the execution of the Transactions Merger Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon relatedthe occurrence of additional events or acts) result in, concurrentcause the accelerated vesting or delivery of, or subsequent employment terminationincrease the amount or value of, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute benefit to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject Subsidiaries. Notwithstanding anything stated in this Section 5.10 to the Laws of any jurisdiction outside contrary, with respect to the severance plans or arrangements for the officers of the United StatesCompany and its Subsidiaries, Schedule 5.10 of the Disclosure Schedule sets forth to the knowledge of the Company only such plans or arrangements for which the costs will exceed $100,000 per individual plan or arrangement or $500,000 in the aggregate for all such plans or arrangements.
Appears in 2 contracts
Samples: Merger Agreement (Pentair Inc), Merger Agreement (Essef Corp)
Employee Benefit Plans. (a) Section 3.10(a3.12(a) of the Company Disclosure Schedule contains sets forth a correct complete and accurate list of each material Company Employee Plan. With respect to each Company Employee Plan, the Company has provided to the Purchaser complete list and accurate copies of (A) each such Company Employee Plan, including any material amendments thereto, and descriptions of all material terms of any such plan that is not in writing, (B) each trust, insurance, annuity or other funding Contract related thereto, (C) all summary plan descriptions, including any summary of material modifications, and any other material notice or description provided to employees, (D) the three most recent financial statements and actuarial or other valuation reports prepared with respect thereto, (E) the most recently received IRS determination letter, if any, issued by the IRS with respect to any Company Benefit Plans Employee Plan that is intended to qualify under Section 401(a) of the Code, (F) the three most recent annual reports on Form 5500 (and all schedules thereto) required to be filed with the IRS with respect thereto and (G) all other material filings and material Company Benefit Arrangements. The Company has made available correspondence with any Governmental Authority (including any correspondence regarding actual or, to Parent complete and correct copies the Knowledge of the following documents Company, threatened audits or investigations) with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesEmployee Plan.
(b) Each Qualified Company Employee Plan has received a favorable determination letter, (and any related trust or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”other funding vehicle) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been maintained and administered in all material respects in accordance with its terms and is in compliance in all material respects with all applicable Laws, including ERISA, the Code, Code and all other applicable Laws. Each of the Patient Protection and Affordable Care Act (“ACA”) Company and the Health Insurance Portability Company Subsidiaries has performed all material obligations required to be performed by it under all Company Employee Plans.
(c) No Company Employee Plan is, and Accountability Act. With none of the Company, any of the Company Subsidiaries or any ERISA Affiliate thereof sponsors, maintains, contributes to, or has ever sponsored, maintained, contributed to, or has any actual or contingent liability with respect to each Company Benefit Plan and Company Benefit Arrangement, any (i) no non-exempt transactions prohibited by Code single employer plan or other pension plan that is subject to Section 4975 302 or Title IV of ERISA or Section 406 have occurred and 412 of the Code, (ii) “multiple employer plan” within the meaning of Section 413(c) of the Code, (iii) any “multiemployer plan” within the meaning of Section 3(37) of ERISA) or (iv) multiple employer welfare arrangement (within the meaning of Section 3(4) of ERISA).
(d) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has timely received or applied for a favorable determination letter or is entitled to rely on a favorable opinion letter from the IRS, in either case, that has not been revoked and, to the Knowledge of the Company, no act event or omission circumstance exists that has occurred that could adversely affected or would reasonably be expected to have a Material Adverse Effectmaterially and adversely affect such qualification or exemption. Each trust established in connection with any Company Employee Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and, to the Knowledge of the Company, no fact or event has occurred that would reasonably be expected to materially and adversely affect the exempt status of any such trust. Neither the Company nor any of its Subsidiaries is liable for Company Subsidiary, with respect to any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other Company Employee Plan, has engaged in any non-employee classification exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) which could result in the imposition of a material penalty assessed pursuant to Section 502(i) of ERISA or a material tax imposed by Section 4975 of the Code on the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Subsidiary.
(e) Except as set forth on Section 3.10(e) None of the Company Disclosure Scheduleexecution, no Company Benefit Plan delivery or Company Benefit Arrangement contains any provision performance of this Agreement by the Company, the acceptance for payment or is subject acquisition of Shares pursuant to any Law thatthe Offer, as a result the exercise of the Transactions Top-Up Option, the consummation by the Company of the Mergers or upon related, concurrentany other transaction contemplated by this Agreement, or subsequent the Company’s compliance with any of the provisions of this Agreement will (either alone or in conjunction with any other event, including any termination of employment termination, would on or following the Effective Time) (i) increase, accelerate or vest entitle any Participant to any compensation or benefit, (ii) require severanceaccelerate the time of payment or vesting, termination increase the amount of payment, or retention payments trigger any payment or funding, of any compensation or benefit or trigger any other material obligation under any Company Employee Plan, or (iii) forgive trigger any indebtedness. No Company Benefit Plan funding (through a grantor trust or Company Benefit Arrangement contains any provision otherwise) of compensation, equity award or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Codeother benefits.
(f) With respect to each “disqualified individual” (as defined in Section 280G(c) of the Code) who could receive any “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), the Company has made available or will make available as soon as reasonably practicable following the date hereof to Parent and the Purchaser (i) a list of such Person’s name and title (ii) Form W-2s for the five years ending 2012 (or for such shorter period during which a disqualified individual provided service to the Company) and (iii) a list of Company Employee Plans providing for “parachute payments” (as defined in Section 280G(b)(2) of the Code) such Person could receive. Except as set forth on in Section 3.10(f3.12(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result none of the Transactions execution, delivery or upon relatedperformance of this Agreement by the Company, concurrent, or subsequent employment termination, would require or provide any the acceptance for payment or compensation that would constitute an acquisition of Shares pursuant to the Offer, the exercise of the Top-Up Option, the consummation by the Company of the Mergers or any other transaction contemplated by this Agreement, nor the Company’s compliance with any of the provisions of this Agreement (alone or in conjunction with any other event, including any termination of employment on or following the Effective Time), will result in any “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) No Company Employee Plan provides for any gross-up, reimbursement or additional payment by reason of any Tax imposed under Section 409A or Section 4999 of the Code.
(h) Each material Company Employee Plan that constitutes a nonqualified deferred compensation plan (within the meaning of Section 409A of the Code) is set forth in Section 3.12(h) of the Company Disclosure Schedule and has been maintained and operated in material documentary and operational compliance with Section 409A or the Code or an available exemption therefrom.
(i) Each material Company Employee Plan maintained or contributed to by the Company or any Company Subsidiary under the law or applicable custom or rule of the relevant jurisdiction outside of the United States (each such Company Employee Plan, a “Foreign Plan”) is listed in Section 3.12(i) of the Company Disclosure Schedule. As regards each Foreign Plan, (i) such Foreign Plan is in material compliance with the provisions of applicable Law of each jurisdiction in which such Foreign Plan is maintained, (ii) such Foreign Plan has been administered in all material respects at all times in accordance with its terms and applicable Laws, and (iii) such Foreign Plan has obtained from the Governmental Authority having jurisdiction with respect to such Foreign Plan any required determinations, if any, that such Foreign Plan is in compliance in all material respects with the Laws of the relevant jurisdiction if such determinations are required in order to give effect to such Foreign Plan. No Foreign Plan has unfunded liabilities that will not be offset by insurance or that are not fully accrued on the financial statements of the Company.
(j) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute Company Subsidiary is a party to any “multiple employer welfare arrangement” Contract or plan that would reasonably be likely to result, separately or in the aggregate, in the payment of any material amount that will not be fully deductible as defined in a result of Section 3(40162(m) of ERISAthe Code (or any corresponding provision of any other applicable Tax Laws).
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(ik) Neither the Company nor any of its Subsidiaries maintains Company Subsidiary has any liability in respect of, or has maintained any Benefit Plan obligation to provide, post-retirement health, medical, disability or Benefit Arrangement covering any life insurance benefits for retired, former or current employees, consultants or former employee directors of the Company or Company Subsidiaries (or the spouses, dependent or beneficiaries of any of its Subsidiaries that is the foregoing), whether under a Company Employee Plan or was subject otherwise, except as required to the Laws of any jurisdiction outside comply with Section 4980B of the United StatesCode or any similar Law.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Device Technology Inc), Merger Agreement (PLX Technology Inc)
Employee Benefit Plans. (a) Section 3.10(a3.12(a) of the Company Disclosure Schedule contains sets forth a correct complete and accurate list of each Benefit Plan and each Benefit Agreement. With respect to each Benefit Plan and Benefit Agreement, the Company has provided to the Purchaser complete list and accurate copies of (A) each such Benefit Plan or Benefit Agreement, including any amendments thereto, and descriptions of all material Company terms of any such plan that is not in writing, (B) each trust, insurance, annuity or other funding Contract related thereto, (C) all summaries and summary plan descriptions, including any summary of material modifications, and any other notice or description provided to employees, (D) the three most recent financial statements and actuarial or other valuation reports prepared with respect thereto, (E) the most recently received IRS determination letter, if any, issued by the IRS with respect to any Benefit Plans Plan and/or Benefit Agreement that is intended to qualify under Section 401(a) of the Code, (F) the three most recent annual reports on Form 5500 (and all schedules thereto) required to be filed with the IRS with respect thereto and (G) all other filings and material Company Benefit Arrangements. The Company has made available correspondence with any Governmental Entity (including any correspondence regarding actual or, to Parent complete and correct copies of the following documents Company’s knowledge, threatened audits or investigations) with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesAgreement.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement Agreement (and any related trust or other funding vehicle) has been maintained and administered in all material respects in accordance with its terms and is in compliance in all material respects with all applicable Laws, including ERISA, the CodeCode and all other applicable Laws. The Company has performed all material obligations required to be performed by it under all Benefit Plans and Benefit Agreements.
(c) No Benefit Plan is, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With or any Commonly Controlled Entity sponsors, maintains, contributes to, or has ever sponsored, maintained, contributed to, or has any actual or contingent liability with respect to each Company Benefit Plan and Company Benefit Arrangement, any (i) no non-exempt transactions prohibited by Code single employer plan or other pension plan that is subject to Section 4975 302 or Title IV of ERISA or Section 406 have occurred and 412 of the Code, (ii) “multiple employer plan” within the meaning of Section 413(c) of the Code, (iii) defined benefit superannuation fund or is otherwise a defined benefit plan (including, without limitation, any “multiemployer plan” within the meaning of Section 3(37) of ERISA) or (iv) multiple employer welfare arrangement (within the meaning of Section 3(4) of ERISA). No Benefit Plan or Benefit Agreement provides health, medical, life insurance or other welfare benefits to any individual after retirement or other termination of employment other than as required under Section 4890B of the Code, and no act circumstances exist that could result in the Company becoming obligated to provide any such benefits.
(d) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has timely received a favorable determination letter or omission is entitled to rely on a favorable opinion letter from the IRS, in either case, that has not been revoked and, to the knowledge of the Company, no event or circumstance exists that has adversely affected or would reasonably be expected to adversely affect such qualification or exemption. Each trust established in connection with any Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and no fact or event has occurred that could reasonably be expected to have a Material Adverse Effect. Neither adversely affect the Company nor exempt status of any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plansuch trust. There are no current has not been any prohibited transaction (within the meaning of Section 406 of ERISA or contingent Liabilities that could reasonably be expected to be imposed upon Section 4975 of the Company or any of its Subsidiaries Code) with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Plan.
(e) Except as set forth on Section 3.10(e) None of the execution, delivery or performance of this Agreement by the Company, the consummation by the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions Merger or upon related, concurrentany other transaction contemplated by this Agreement, or subsequent the Company’s compliance with any of the provisions of this Agreement will (either alone or in conjunction with any other event, including any termination of employment termination, would on or following the Effective Time) (i) increase, accelerate or vest entitle any Participant to any compensation or benefit, (ii) require severanceentitle any employee of the Company to resign or treat his or her employment as terminated, termination or retention payments or (iii) forgive accelerate the time of payment or vesting, increase the amount of payment, or trigger any indebtedness. No Company payment or funding, of any compensation or benefit or trigger any other material obligation under any Benefit Plan or Company Benefit Arrangement contains Agreement or (iv) result in any provision breach or is subject violation of or default under or limit the Company’s right to amend, modify or terminate any Law that would promise Benefit Plan or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the CodeBenefit Agreement.
(f) Except as set forth on in Section 3.10(f3.12(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result none of the Transactions execution, delivery or upon relatedperformance of this Agreement by the Company, concurrentthe consummation by the Company of the Merger or any other transaction contemplated by this Agreement, nor the Company’s compliance with any of the provisions of this Agreement (alone or subsequent in conjunction with any other event, including any termination of employment terminationon or following the Effective Time), would require or provide will result in any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither No Participant is entitled to receive any gross-up, reimbursement or additional payment by reason of any Tax imposed under Section 409A or Section 4999 of the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISACode.
(h) The Each Benefit Plan, Benefit Agreement and other plan or Contract maintained, established or entered into by the Company Benefit Plans and Company Benefit Arrangements have that constitutes a nonqualified deferred compensation plan (within the meaning of Section 409A of the Code) has been documented and administered (i) operated in accordance good faith compliance with Section 409A of the Code or an available exemption therefrom from January 1, 2005 through December 31, 2008 (to the extent in all material respectsexistence during such period) and (ii) maintained and operated, since January 1, 2010 (to the extent in existence since such date), in documentary and operational compliance with Section 409A or the Code or an available exemption therefrom. No compensation has been or would reasonably be expected to be includable in the gross income of any “service provider” (within the meaning of Section 409A of the Code) of the Company as a result of the operation of Section 409A of the Code.
(i) Neither the The Company nor any of its Subsidiaries maintains has not ever maintained, sponsored, participated in or has maintained contributed to, any Benefit Plan or Benefit Arrangement covering Agreement subject to the Laws of any current or former employee jurisdiction outside of the Company United States, and no Benefit Plan or Benefit Agreement provides compensation or benefits to any of its Subsidiaries that is or was Participant subject to the Laws of any jurisdiction outside of the United States.
(j) The Company is not a party to any Contract or plan that has resulted or could result, separately or in the aggregate, in the payment of any amount that will not be fully deductible as a result of Section 162(m) of the Code (or any corresponding provision of any other applicable Tax Laws).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Red Cat Holdings, Inc.), Merger Agreement (Red Cat Holdings, Inc.)
Employee Benefit Plans. (a) Section 3.10(a3.3(o) of the Company Disclosure Schedule Letter contains a correct and complete list of all material Company Benefit Plans pension, retirement, stock option, stock purchase, stock ownership, savings, stock appreciation right, profit sharing, deferred compensation, consulting, bonus, group insurance, employment, termination, severance, medical, health and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementother benefit plans, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) yearsagreements, including all schedules theretoarrangements, annual reportincluding, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRSbut not limited to, Department of Labor"employee benefit plans", or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(403(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA.
(h) The Company Benefit Plans "), incentive and Company Benefit Arrangements have been documented welfare policies, contracts, plans and administered arrangements and all trust agreements related thereto in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor respect to any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current present or former employee directors, officers, or other employees of the Company or any of its Subsidiaries (hereinafter referred to collectively as the "Employee Plans").
(i) All of the Employee Plans comply in all material respects with all applicable requirements of ERISA, the Code and other applicable laws; neither the Company nor any of its Subsidiaries has engaged in a "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan that, assuming the taxable period of such transaction expired as of the date hereof, would subject the Company to a material tax or penalty imposed by either Section 4975 or 4976 of the Code or Section 502 of ERISA; and all contributions required to be made under the terms of any Employee Plan have been timely made or have been reflected on the balance sheets contained or incorporated by reference in the Reports; (ii) no liability to the Pension Benefit Guaranty Corporation (the "PBGC") (except for payment of premiums) has been incurred, and no condition exists that presents a material risk to the Company or any ERISA Affiliate (as defined below) of incurring such a liability, with respect to any Employee Plan which is subject to Title IV of ERISA ("Pension Plan"), or with respect to any "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) currently or formerly maintained by the Company or any entity (an "ERISA Affiliate") which is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code (an "ERISA Affiliate Plan"); and no proceedings have been instituted to terminate any Pension Plan or ERISA Affiliate Plan; (iii) no Pension Plan or ERISA Affiliate Plan had an "accumulated funding deficiency" (as defined in Section 302 of ERISA (whether or not waived)) as of the last day of the end of the most recent plan year ending prior to the date hereof; the fair market value of the assets of each Pension Plan and ERISA Affiliate Plan exceeds the present value of the "benefit liabilities" (as defined in Section 4001(a)(16) of ERISA) under such Pension Plan or ERISA Affiliate Plan as of the end of the most recent plan year with respect to the respective Pension Plan or ERISA Affiliate Plan ending prior to the date hereof, calculated on the basis of the actuarial assumptions used in the most recent actuarial valuation for such Pension Plan or ERISA Affiliate Plan prior to the date hereof, and there has been no material change in the financial condition of any such Pension Plan or ERISA Affiliate Plan since the last day of the most recent plan year; and no notice of a "reportable event" (as defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived has been required to be filed for any Pension Plan or ERISA Affiliate Plan within the 12-month period ending on the date hereof; (iv) neither the Company nor any ERISA Affiliate has provided or is required to provide security to any Pension Plan or to any ERISA Affiliate Plan pursuant to Section 401(a)(29) of the Code; (v) neither the Company nor any ERISA Affiliate has contributed to any "multiemployer plan", as defined in Section 3(37) of ERISA, on or after September 26, 1980; (vi) each Employee Plan which is an "employee pension benefit plan" (as defined in Section 3(2) of ERISA), and which is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter from the Internal Revenue Service deeming such plan to be so qualified (a "Qualified Plan"); and no condition exists that is likely to result in revocation of any such favorable determination letter; (vii) all Employee Plans covering current or was former non-U.S. employees comply in all material respects with applicable local law, and there are no material unfunded liabilities with respect to any Employee Plan which covers such employees; (viii) there is no pending or threatened material litigation, administrative action or proceeding relating to any Employee Plan (other than benefit claims made in the ordinary course); (ix) there has been no announcement or commitment by the Company or any Subsidiary to create an additional Employee Plan, or to amend an Employee Plan except for amendments required by applicable law; (x) the Company and its Subsidiaries do not have any obligations for retiree health and life benefits under any Employee Plan except as set forth in Section 3.3(o) of the Company's Disclosure Letter, and there are no such Employee Plans that cannot be amended or terminated without incurring any liability thereunder; (xi) except as set forth in Section 3.3(o) of the Company Disclosure Letter, neither the execution and delivery of this Plan nor the consummation of the transactions contemplated herein will automatically accelerate, or give the Company or any Subsidiary the right to accelerate, the time of payment or vesting, or increase the amount, of compensation due to any employee; (xii) except as specificially identified in Section 3.3(o) of the Company Disclosure Letter, and subject to the Laws conditions, limitations and assumptions specified therein, neither the execution and delivery of this Plan nor the consummation of the transactions contemplated hereby will result in any payment or series of payments by the Company or any Subsidiary of the Company to any person which is an "excess parachute payment" (as defined in Section 280G of the Code) under any Employee Plan, increase or secure (by way of a trust or other vehicle) any benefits or compensation payable under any Employee Plan, or accelerate the time of payment or vesting of any jurisdiction outside such benefit or compensation, and (xiii) with respect to each Employee Plan, the Company has supplied to the Acquiror a true and correct copy, if applicable, of (A) the two most recent annual reports on the applicable form of the United StatesForm 5500 series filed with the Internal Revenue (the "IRS"), (B) such Employee Plan, including all amendments thereto, (C) each trust agreement and insurance contract relating to such Employee Plan, including all amendments thereto and the most recent financial statements thereof, (D) the most recent summary plan description for such Employee Plan, including all amendments thereto, if the Employee Plan is subject to Title I of ERISA, (E) the most recent actuarial report or valuation if such Employee Plan is a Pension Plan, (F) the most recent determination letter issued by the IRS if such Employee Plan is a Qualified Plan and (G) the most recent financial statements and auditor's report relating to each Employee Plan, if applicable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (First Nationwide Holdings Inc), Agreement and Plan of Merger (First Nationwide Parent Holdings Inc)
Employee Benefit Plans. (a) Section 3.10(a4.10(a) of the Company Parent Disclosure Schedule contains Memorandum sets forth a correct true and complete list of each material “employee benefit plan” as defined in Section 3(3) of ERISA and any other plan, policy, program, practice, agreement, understanding or arrangement (whether written or oral) providing material compensation or other material benefits to any current or former director, officer, employee or consultant (or to any dependent or beneficiary thereof of the Parent), which are maintained, sponsored or contributed to by the Parent or any of its Subsidiaries, or under which the Parent or any of its Subsidiaries has any material obligation or liability, whether actual or contingent, including, without limitation, all material Company incentive, bonus, deferred compensation, profit-sharing, severance, termination, retention, change in control, vacation, holiday, cafeteria, medical, disability, stock purchase, stock option, stock appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies, programs, practices or arrangements (each a “Parent Benefit Plans and material Company Plan”). Neither the Parent, nor to the knowledge of the Parent, any other person or entity, has made any commitment to establish, modify, change or terminate any Parent Benefit ArrangementsPlan, other than with respect to a modification, change or termination required by ERISA, the Code or other applicable Law. The Company With respect to each Parent Benefit Plan, except as set forth in Section 4.10 of the Parent Disclosure Memorandum, the Parent has delivered or made available to Parent the Company true, correct and complete and correct copies copies, if applicable, of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) each Parent Benefit Plan (or, if not written a written summary of its material terms), including without limitation all plan documents, adoption agreements, trust documentsagreements, insurance contractscontracts or other funding vehicles and all amendments thereto, service provider agreements (ii) all current summary plan descriptions and amendments thereto; (ii) written descriptions , including any current summary of all material non-written agreements relating to any such plan or arrangement; modifications, (iii) the annual reports (Form 5500 filings series) for the last three (3) yearstwo most recent years filed or required to be filed with the IRS with respect to such Parent Benefit Plan, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; two most recent actuarial reports or other financial statements relating to such Parent Benefit Plan, (v) the most recent summary plan description determination or opinion letter, if any, issued by the IRS with respect to any Parent Benefit Plan and summaries of material modifications thereto; any pending request for such a determination letter, (vi) all material notices or other communications received from the IRSmost recent nondiscrimination tests performed under the Code (including 401(k) and 401(m) tests) for each Parent Benefit Plan, Department of Labor, or any other Governmental Authority on or after January 1, 2014; and (vii) required notices all filings made with any Governmental Entity, including but not limited to any filings under the Voluntary Compliance Resolution or other written communications to employees; and (viii) employee manuals Closing Agreement Program or handbooks containing personnel the Department of Labor Delinquent Filer Program, within the current or employee relations policiesprior two calendar years.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Parent Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, ERISA and the Code, and contributions required to be made under the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor terms of any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified the Parent Benefit Plans as an independent contractor or other non-employee classification by of the Company or any date of its Subsidiaries has this Agreement have been timely made or, if not yet due, have been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither reflected on the Company nor any of its Subsidiaries has, within six (6) years most recent balance sheet filed or incorporated by reference in the Parent SEC Filings prior to the date of this Agreement. With respect to the Parent Benefit Plans, maintainedno event has occurred and, to the knowledge of the Parent, there exists no condition or set of circumstances in connection with which the Parent could be subject to any material liability (other than for routine benefit liabilities) under the terms of, or with respect to, such Parent Benefit Plans, ERISA, the Code or any other applicable Law.
(c) Except as set forth in Section 4.10(c) of the Parent Disclosure Memorandum: (i) each Parent Benefit Plan which is intended to qualify under Section 401(a), Section 401(k), Section 401(m) or Section 4975(e)(6) of the Code has either received a favorable determination letter from the IRS as to its qualified status or the remedial amendment period for such Parent Benefit Plan has not yet expired, and each trust established in connection with any Parent Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and to the Parent’s knowledge no fact or event has occurred that has adversely affected or could adversely affect the qualified status of any such Parent Benefit Plan or the exempt status of any such trust, (ii) to the Parent’s knowledge there has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code and other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Parent Benefit Plan that could result in liability to the Parent or any of its Subsidiaries, (iii) no suit, administrative proceeding, action or other litigation has been brought, or to the knowledge of the Parent is threatened, against or with respect to any such Parent Benefit Plan or an administrator or fiduciary thereof, including any audit or inquiry by the IRS, United States Department of Labor, the Pension Benefit Guaranty Corporation, or any other federal or state governmental agency (other than routine benefits claims), (iv) no Parent Benefit Plan is a Multiple Employer Plan, a Multiemployer Plan or other pension plan subject to Title IV of ERISA and none of the Parent or any ERISA Affiliate has sponsored or contributed to or been required to contribute to a Multiple Employer Plan, a Multiemployer Plan, or other pension plan subject to Title IV of ERISA, (v) no material liability under Title IV of ERISA has been incurred by the Parent or any Pension Plan. There are ERISA Affiliate that has not been satisfied in full, and no current condition exists that presents a material risk to the Parent or contingent Liabilities that could any ERISA Affiliate of incurring or being subject (whether primarily, jointly or secondarily) to a material liability thereunder, (vi) none of the assets of the Parent or any ERISA Affiliate is, or may reasonably be expected to be imposed upon become, the Company subject of any lien arising under ERISA or Section 412(n) of the Code, (vii) neither the Parent nor any ERISA Affiliate has any liability under ERISA Section 502, (viii) all Tax, annual reporting and other governmental filings required by ERISA and the Code have been timely filed with the appropriate Governmental Entity and all required notices and disclosures have been timely provided to Parent Benefit Plan participants, and (ix) all contributions and payments to each Parent Benefit Plan are deductible under Code sections 162 or 404.
(d) Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, either alone or in combination with another event (whether contingent or otherwise) will (i) entitle any former employee, consultant or director of the Parent or any of its Subsidiaries with respect or any group of such employees, consultants or directors to any Pension Plan maintained by an ERISA Affiliate.
payment; (dii) There are no pending orincrease the amount of compensation or benefits due to any such employee, consultant or director; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit to the knowledge any such employee, consultant or director; (iv) result in any “parachute payment” under Section 280G of the CompanyCode (whether or not such payment is considered to be reasonable compensation for services rendered); or (v) cause any compensation to fail to be deductible under Section 162(m) of the Code, threatened Actions (or any other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to provision of the Code or any Company Benefit Plans similar foreign law or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)regulation.
(e) Except as set forth required by Law, no Parent Benefit Plan provides any of the following retiree or post-employment benefits to any person and there has been no communication to any current or former employee, consultant or director of the Parent or any Subsidiary of the Parent that would reasonably be expected to promise or guarantee any such benefits on any ongoing basis: medical, disability or life insurance benefits. No Parent Benefit Plan is a voluntary employee benefit association under Section 3.10(e501(a)(9) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would Code. The Parent and each ERISA Affiliate are in material compliance with (i) increasethe requirements of the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, accelerate or vest as amended, and the regulations (including proposed regulations) thereunder and any compensation or benefit, similar state law and (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A the applicable requirements of the CodeHealth Insurance Portability and Accountability Act of 1996, as amended, and the regulations (including the proposed regulations) thereunder.
(f) Except as set forth on in Section 3.10(f) 4.10 of the Company Parent Disclosure ScheduleMemorandum, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result none of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company Parent or any of its Subsidiaries maintains, sponsors, contributes or has any liability with respect to any employee benefit plan, program or arrangement that is or was subject provides benefits to the Laws of any jurisdiction non-resident aliens with no U.S. source income outside of the United States.
(g) Section 4.10(g) of the Parent Disclosure Memorandum sets forth any and all indebtedness in excess of twenty-five thousand U.S. dollars (US$25,000) owed by any current or former employee, consultant or director of the Parent or any Subsidiary of the Parent to any such entity, other than travel advances and similar amounts arising in the ordinary course of business and consistent with past practice and the Parent policies and procedures.
Appears in 2 contracts
Samples: Merger Agreement (Pfsweb Inc), Merger Agreement (Ecost Com Inc)
Employee Benefit Plans. (a) Section 3.10(aSchedule 4.13(a) of the Company Disclosure Schedule Letter contains a correct true and complete list of all material each Company Benefit Plan (other than any such Company Plans and material that are de minimis in nature) specifying which Company Benefit Arrangements. The Company has made available Plans are applicable to Parent complete and correct copies non-U.S. employees of the following documents Company and its Subsidiaries. For purposes of this Agreement, a “Company Plan” is any Plan (i) under which any employee or former employee of the Company or any of its Subsidiaries or individual or sole proprietorship serving as a consultant or independent contractor to the Company or any of its Subsidiaries has any present or future right to benefits and that the Company or any of its Subsidiaries sponsors, maintains or contributes or is obligated to contribute, or (ii) with respect to each material which the Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on of its Subsidiaries has any actual or after January 1contingent Liability. For purposes of this Agreement, 2014; (vii) required notices in no event shall the term Company Plans include any Plan that is sponsored or other written communications to employees; and (viii) employee manuals maintained by any of Parent or handbooks containing personnel or employee relations policiesany of its Subsidiaries.
(b) Each Qualified Except for matters that, individually or in the aggregate, have not resulted or would not reasonably be expected to result in any material liability to the Company or its Subsidiaries, taken as a whole, (i) each Company Plan has received a favorable determination letterbeen established, or is the subject of a favorable advisory or opinion letter as to its qualificationregistered, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified amended, funded, invested, maintained and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms terms, and complies in all material respects in form and in operation with all the applicable requirements of ERISA and the Code and other Applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act all employer or omission has occurred that could reasonably be expected employee contributions, premiums and expenses to or in respect of each Company Plan have a Material Adverse Effect. Neither been paid in full or, to the extent not yet due, have been adequately accrued on the applicable financial statements of the Company included in the Company SEC Documents in accordance with GAAP, (iii) neither the Company, any Company Plan nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor trustee, administrator or other nonthird-employee classification by the party fiduciary and/or party-in-interest thereof, has, with respect to any Company Plan, engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 406 of its Subsidiaries has been properly classified for purposes ERISA or Section 4975 of participation the Code) to which Section 406 of ERISA or Section 4975 of the Code applies and benefit accrual under each Company Benefit Plan and Company Benefit Arrangementwhich would subject, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries hasor impose an indemnification obligation on, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to the Tax or penalty on prohibited transactions imposed by Section 4975 of the Code, and (iv) neither the Company nor any Pension of its Subsidiaries has engaged in a transaction that would reasonably be expected to result in a civil penalty under Sections 409 or 502(i) of ERISA.
(c) The Company has made available to Parent true, complete and correct copies of (to the extent applicable) (i) all such Company Plans and any amendments thereto; (ii) each trust, funding, insurance or administrative agreement relating to each such Company Plan; (iii) the most recent summary plan description or other written explanation (or a description of any oral communications) of each such Company Plan maintained provided to participants and any amendments thereto concerning the extent of the benefits provided under a Company Plan; (iv) the most recent Form 5500 required to have been filed with the Internal Revenue Service (or any similar reports filed in any comparable non-U.S. Governmental Authority) and any schedule thereto; (v) the most recent determination letter or opinion letter issued by an ERISA Affiliatethe Internal Revenue Service (or comparable qualification document issued by a comparable non-U.S. Governmental Authority); (vi) to the extent applicable, for the two (2) most recent years, financial or actuarial reports; and (vii) all material written communications to any Governmental Authority relating to such Company Plan.
(d) There are no pending or, Neither the Company nor any of its Subsidiaries has made any binding commitment to create any additional benefit plans which would be considered to be a Company Plan once created or to modify any Company Plan in a manner that would materially increase the knowledge expense of maintaining such Company Plan above the Company, threatened Actions (other than routine benefit claims and proceedings level or expense incurred with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including that plan for the IRS and the Department of Labor)fiscal year ended December 31, 2016.
(e) Except for matters that, individually or in the aggregate, have not resulted or would not reasonably be expected to result in any material liability to the Company or its Subsidiaries, taken as set forth on Section 3.10(ea whole, no Claim with respect to any Company Plan (other than routine claims for benefits) by the Department of Labor, the IRS or any other Governmental Authority or by any plan participant or beneficiary is pending or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Disclosure SchedulePlans nor, no Company Benefit Plan to the Knowledge of the Company, are there facts or Company Benefit Arrangement contains any provision or is subject circumstances that exist that could reasonably give rise to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Codesuch Claims.
(f) Except as set forth on Each Company Plan which is intended to be qualified under Section 3.10(f401(a) of the Company Disclosure ScheduleCode has received a determination letter to that effect from the Internal Revenue Service or is entitled to rely upon a favorable opinion issued by the Internal Revenue Service and, to the Knowledge of the Company, no Company Benefit Plan circumstances exist which would reasonably be expected to adversely affect such qualification or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Lawsexemption.
(g) Neither the Company nor any of its Subsidiaries hashas any material liability or obligation under any Company Plan to provide benefits after termination of employment to any employee or dependent other than as required by Section 4980B of the Code or Applicable Law.
(h) Neither the Company nor any ERISA Affiliate maintains, sponsors, participates in, contributes to or is obligated to contribute to, or has within the last six (6) years prior to the date of this Agreement, maintained, sponsored, or been required participated in, contributed to was obligated to contribute to to, or otherwise has incurred any obligation or liability (including any contingent liability) under, any “multiemployer plan” (as defined in Section 3(37) of ERISA), “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or any other employee pension benefit plan (as defined in Section 3(2) of ERISA) that is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Company Plan is a “multiple employer plan” (within the meaning of Section 4063 or 4064 of ERISA or the equivalent thereof under applicable non-U.S. Laws). Except for matters that, individually or in the aggregate, have not resulted or would not reasonably be expected to result in any material liability to the Company or its Subsidiaries, taken as a whole, no event has occurred and no condition exists that would, either directly or by reason of the Company’s or any of its Subsidiaries’ affiliation with any of their ERISA Affiliates, subject the Company or any of its Subsidiaries to any Tax, fine, Lien, penalty or other liability imposed by ERISA, the Code or other applicable Laws, in each case, as related to the Company Plans.
(hi) The Each Company Benefit Plans Plan subject to Section 409A of the Code is in material compliance in form and Company Benefit Arrangements have been documented and administered in accordance operation with Section 409A of the Code in all material respectsand the applicable guidance and regulations thereunder.
(j) Except as set forth in Schedule 4.13(j) of the Company Disclosure Letter, neither the execution nor delivery of this Agreement or the other Transaction Documents, nor the consummation of the transactions contemplated thereby, will cause or result in (either alone or in combination with another event): (i) any of the following with respect to any current or former officer, employee, manager, director, or consultant of the Company or any of its Subsidiaries: (A) any payment, compensation, or benefit (whether of severance pay or otherwise) becoming due, or increase in the amount of any payment, compensation, or benefit becoming due, or (B) the acceleration of the time of payment or vesting of any payment, compensation, or benefit, or (ii) the payment or deemed payment of any amount (whether in cash, property, the vesting of property, or otherwise) 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, or (iii) any funding obligation under any Company Plan or an imposition of any restrictions or limitations on the Company’s or any of its Subsidiaries’ right to administer, amend, or terminate any Company Plan. No person is entitled to receive any tax gross-up payment from the Company or any of its Subsidiaries as a result of the imposition of any excise taxes required by section 4999 of the Code.
(k) Except for matters that, individually or in the aggregate, have not resulted or would not reasonably be expected to result in material liability to the Company or its Subsidiaries, taken as a whole, each Company Plan maintained exclusively for the benefit of employees of the Company or any of its Subsidiaries residing outside of the United States (each, a “Non-U.S. Company Plan”) has been maintained in compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules, and regulations (including any special provisions relating to qualified plans where such Non-U.S. Company Plan was intended to so qualify), has been maintained in good standing with applicable regulatory authorities and all such plans that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions. There is no pending or, to the Knowledge of the Company, threatened litigation relating to any Non-U.S. Company Plan. Neither the Company nor any of its Subsidiaries maintains offers or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee ever offered employees of the Company or any of its Subsidiaries participation in any Non-U.S. Company Plans that is provide defined benefit pension arrangements to its employees or was subject to the Laws of any jurisdiction outside of the United Statesformer employees.
Appears in 2 contracts
Samples: Merger Agreement (KCG Holdings, Inc.), Merger Agreement (Virtu Financial, Inc.)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule contains Memorandum sets forth a correct true and complete list of each material “employee benefit plan” as defined in Section 3(3) of ERISA and any other plan, policy, program, practice, agreement, understanding or arrangement (whether written or oral) providing material compensation or other material benefits to any current or former director, officer, employee or consultant (or to any dependent or beneficiary thereof of the Company), which are maintained, sponsored or contributed to by the Company or any of its Subsidiaries, or under which the Company or any of its Subsidiaries has any material obligation or liability, whether actual or contingent, including, without limitation, all material incentive, bonus, deferred compensation, vacation, holiday, cafeteria, medical, disability, stock purchase, stock option, stock appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies, programs, practices or arrangements (each a “Company Benefit Plans and material Company Benefit ArrangementsPlan”). The Company has made available to Parent complete and correct copies of Neither the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementCompany, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, nor to the knowledge of the Company, no act any other person or omission entity, has any commitment to establish, modify, change or terminate any Company Benefit Plan, other than with respect to a modification, change or termination required by ERISA or the Code. With respect to each Company Benefit Plan, except as set forth in Section 3.10 of the operation Company Disclosure Memorandum, the Company has delivered to Parent true, correct and complete copies of (i) each Company Benefit Plan (or, if not written a written summary of its material terms), including without limitation all plan documents, adoption agreements, trust agreements, insurance contracts or other funding vehicles and all amendments thereto, (ii) all current summary plan descriptions, including any current summary of material modifications, (iii) the annual reports (Form 5500 series) for the most recent year filed or required to be filed with the IRS with respect to such plan has occurred that could adversely affect its qualified status. Company Benefit Plan, (iv) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (v) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan and any pending request for such a determination letter, (vi) the most recent nondiscrimination tests performed under the Code (including 401(k) and 401(m) tests) for each Company Benefit Plan, and (vii) all filings made with any Governmental Entity, including but not limited any filings under the Voluntary Compliance Resolution or Closing Agreement Program or the Department of Labor Delinquent Filer Program, within the current or prior two calendar years.
(b) Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, ERISA and the Code, and contributions required to be made under the Patient Protection and Affordable Care Act (“ACA”) and terms of any of the Health Insurance Portability and Accountability ActCompany Benefit Plans as of the date of this Agreement have been timely made or, if not yet due, have been properly reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Company SEC Filings prior to the date of this Agreement. With respect to the Company Benefit Plans, no event has occurred and, to the knowledge of the Company, there exists no condition or set of circumstances in connection with which the Company could be subject to any material liability (other than for routine benefit liabilities) under the terms of, or with respect to, such Company Benefit Plans, ERISA, the Code or any other applicable Law.
(c) Except as set forth in Section 3.10(c) of the Company Disclosure Memorandum: (i) each Company Benefit Plan and which is intended to qualify under Section 401(a), Section 401(k), Section 401(m) or Section 4975(e)(6) of the Code has either received a favorable determination letter from the IRS as to its qualified status or the remedial amendment period for such Company Benefit ArrangementPlan has not yet expired, (iand each trust established in connection with any Company Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and to the Company’s knowledge no non-fact or event has occurred that has adversely affected or could adversely affect the qualified status of any such Company Benefit Plan or the exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and status of any such trust, (ii) to the Company’s knowledge there has been no act prohibited transaction (within the meaning of Section 406 of ERISA or omission has occurred Section 4975 of the Code and other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan that could reasonably be expected result in liability to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under Subsidiaries, (iii) each Company Benefit Plan and can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, (iv) no suit, administrative proceeding, action or other litigation has been brought, or to the knowledge of the Company is threatened, against or with respect to any such Company Benefit ArrangementPlan, except including any audit or inquiry by the IRS or United States Department of Labor (other than routine benefits claims), (v) no Company Benefit Plan is a multiemployer pension plan (as could defined in Section 3(37) of ERISA) (“Multiemployer Plan”) or other pension plan subject to Title IV of ERISA and none of the Company or any ERISA Affiliate has sponsored or contributed to or been required to contribute to a Multiemployer Plan or other pension plan subject to Title IV of ERISA, (vi) no material liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Company or any ERISA Affiliate of incurring or being subject (whether primarily, jointly or secondarily) to a material liability thereunder, (vii) none of the assets of the Company or any ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under ERISA or Section 412(n) of the Code, (viii) neither the Company nor any ERISA Affiliate has any liability under ERISA Section 502, (ix) all tax, annual reporting and other governmental filings required by ERISA and the Code have been timely filed with the appropriate Governmental Entity and all notices and disclosures have been timely provided to participants, (x) all contributions and payments to such Company Benefit Plan are deductible under Code sections 162 or 404, (xi) no amount is subject to Tax as unrelated business taxable income under Section 511 of the Code, and (xii) no excise tax could be imposed upon the Company under Chapter 43 of the Code, except, in the case of clauses (ii), (iii), (viii), (ix), (x), (xi) and (xii), which would not, individually or in the aggregate, have a Material Adverse Effect.
(cd) Neither No amount that could be received (whether in cash or property or the Company nor any vesting of its Subsidiaries hasproperty), within six (6) years prior to as a result of the date consummation of the transactions contemplated by this Agreement, maintainedby any employee, sponsored officer or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon director of the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.who is a “disqualified individual” (as such term is defined in proposed Treasury Regulation
(dSection 1. 280G-1) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to under any Company Benefit Plans or Company Benefit Arrangements Plan could be characterized as an “excess parachute payment” (including any such claim against any fiduciary as defined in Section 280G(b)(1) of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of LaborCode).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedulerequired by Law, no Company Benefit Plan provides any of the following retiree or Company Benefit Arrangement contains any provision or is subject post-employment benefits to any Law thatperson medical, as a result of the Transactions disability or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtednesslife insurance benefits. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification a voluntary employee benefit association under Sections 280G or 409A Section 501(a)(9) of the Code. The Company and each ERISA Affiliate are in material compliance with (i) the requirements of the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations (including proposed regulations) thereunder and any similar state law and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations (including the proposed regulations) thereunder.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee None of the Company or any of its Subsidiaries maintains, sponsors, contributes or has any liability with respect to any employee benefit plan, program or arrangement that is or was subject provides benefits to the Laws of any jurisdiction non-resident aliens with no U.S. source income outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Paradyne Networks Inc), Merger Agreement (Zhone Technologies Inc)
Employee Benefit Plans. (ai) Section 3.10(aSchedule 3.01(h) of the Company Disclosure Schedule contains a correct true and complete list of each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (including, without limitation, multiemployer plans within the meaning of Section 3(37) of ERISA), but excluding any benefit plans that are provided by the government of the People’s Republic of China or Hong Kong SAR, or any subdivision or agency thereof), share purchase, share option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other employee benefit plans, agreements, programs, policies or other arrangements relating to employment, benefits or entitlements, 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), whether formal or informal, oral or written, legally binding or not, maintained, sponsored, participated in or contributed to by the Company or any of the Subsidiaries at any time within the five calendar years preceding the Closing Date under which any employee or former employee of the Company or any of the Subsidiaries has any present or future right to benefits or under which the Company or any of the Subsidiaries has any present or future material liability. All such plans, agreements, programs, policies and arrangements are herein collectively referred to as the “Company Benefit Plans and material Plans”.
(ii) With respect to each Company Benefit Arrangements. The Plan, the Company has delivered or made available to Parent a current, accurate and complete and correct copies of copy (or, to the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementextent no such copy exists, an accurate description) thereof and, to the extent applicable: , (iA) all plan documentsany related trust agreement, trust documents, insurance contracts, service provider agreements and amendments theretoannuity contract or other funding instrument; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (vB) the most recent determination letter; (C) the current summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications (or a description of any oral communications) by the Company and the Subsidiaries to employeesits employees concerning the extent of the benefits provided under a Company Plan; and (viiiD) employee manuals or handbooks containing personnel or employee relations policiesfor the three most recent years (w) the Form 5500 and attached schedules; (x) audited financial statements; and (y) actuarial valuation reports if any.
(bA) Each Qualified Company Plan has been established and administered in substantial compliance with its terms and with the applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended (the “Code”) and other applicable laws, rules and regulations; (B) each Company Plan which is intended to be qualified within the meaning of Code Section 401(a) is so qualified and has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualificationqualification or, pursuant to IRS Rev. Proc. 2011-14, is entitled to rely on a notification or opinion letter issued by the Internal Revenue Service (the “IRS”) with respect to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the CodeCompany Plan, and, to the knowledge of the Company, no act nothing has occurred, whether by action or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Lawsfailure to act, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could which would reasonably be expected to have a Material Adverse Effect. Neither cause the Company nor any loss of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
such qualification; (cC) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
Company Plan, no actions, suits or claims (dother than routine claims for benefits in the ordinary course) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect which would reasonably be expected to qualified domestic relations orders) relating give rise to any such actions, suits or claims; (D) neither the Company Benefit Plans nor, to the knowledge of the Company, any other party has engaged in a prohibited transaction, as such term is defined under Code Section 4975 or ERISA Section 406, which would subject the Company Benefit Arrangements or the Subsidiaries (including any such claim against any fiduciary either directly or indirectly as a result of any such indemnification obligation) to any material Tax, penalties or other liabilities under the Code or ERISA; (E) to the knowledge of the Company, no event has occurred and no condition exists that would subject the Company Benefit Plan or the Subsidiaries, either directly or by reason of its affiliation with any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)), to any material Tax, fine or penalty imposed by ERISA, the Code or other applicable laws, rules and regulations; (F) all insurance premiums required to have been paid and all contributions required to be made under the terms of any Company Benefit Arrangement). No Company Benefit Plan Plan, the Code, ERISA or Company Benefit Arrangement has received notice other applicable laws, rules and regulations as of an audit the date hereof have been timely paid or examination made prior thereto and adequate reserves have been provided for on the Company’s December 31, 2014 balance sheet included in the Financial Statements for any premiums (or potential audit portions thereof) and for all benefits attributable to service on or examinationprior to the date thereof; (G) by no Company Plan provides for an increase in benefits at or after the Effective Time of the Merger; (H) neither the Company nor any Governmental Authority member of its Controlled Group has engaged in, or is a successor or parent corporation to an entity that has engaged in, a transaction described in Sections 4069 or 4212(c) of ERISA; and (including I) neither the IRS Company nor any member of its Controlled Group maintains or contributes to any welfare benefit plan that provides health benefits or other welfare benefits to an employee after the employee’s termination of employment or retirement except as required under Section 4980B of the Code and the Department Sections 601 through 608 of Labor)ERISA or similar applicable state law.
(eiv) No Company Plan is, and neither the Company nor any member of its Controlled Group has previously or currently maintains, contributes to or participates in, nor does the Company or any member of its Controlled Group have any obligation to maintain, contribute to or otherwise participate in, or have any liability or other obligation (whether accrued, absolute, contingent or otherwise) under, any (i) “multiemployer plan” (within the meaning of Section 3(37) of ERISA); (ii) “multiple employer plan” (within the meaning of Section 413(c) of the Code); (iii) “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA); (iv) plan that is subject to the provisions of Title IV of ERISA or Section 412 of the Code; or (v) a “funded welfare plan” within the meaning of Section 419 of the Code.
(v) Except as set forth on Section 3.10(eSchedule 3.01(h)(v) of the Company Disclosure Schedule, no (i) each Company Benefit Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to the Company, any member of its Controlled Group, or Parent (except for benefits protected under Section 411(d) of the Code or Section 204(g) of ERISA and other than ordinary administration expenses typically incurred in a termination event) and (ii) none of the Company Benefit Arrangement contains any provision or is Plans will be subject to any Law thatsurrender fees, as a result of the Transactions or upon relateddeferred sales charges, concurrentcommissions, or subsequent employment other fees upon termination other than the normal and reasonable administrative fees associated with their amendment, transfer or termination, would .
(ivi) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No With respect to each Company Benefit Plan or other arrangement to which the Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or a party which provides nonqualified deferred compensation (within the meaning of Section 409A of the Code.
(f) Except as set forth on ), each such Company Plan and other arrangement has been operated in compliance with Section 3.10(f409A of the Code and all applicable IRS guidance promulgated thereunder both operationally and documentarily. No additional Tax under Section 409A(a)(1)(B) of the Code has been or is reasonably expected to be incurred by any “service provider” (within the meaning of Treasury Regulations Section 1.409A-1(f)) under any such Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Codesuch other arrangement. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior has elected to or is required to defer payment of any amounts to any service provider which is subject to the date provisions of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) 457A of ERISAthe Code.
(hvii) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee None of the Company or any of its the Subsidiaries is a party to any agreement, contract, arrangement or plan (including this Agreement and the consummation of the Merger) that is has resulted or was subject would reasonably be expected to result by reason of the Laws transactions contemplated by this Agreement, separately, or in the aggregate, in the payment of any jurisdiction outside “excess parachute payment” within the meaning of Section 280G of the United StatesCode. None of the Company or any of the Subsidiaries is a party to any agreement, contract, arrangement or plan that would bind the Company or the Subsidiaries to compensate any individual for excise or other Taxes imposed under Section 409A or 4999 of the Code.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Amber Road, Inc.)
Employee Benefit Plans. (a) Schedule 4.17(a) sets forth a list of all “employee benefit plans” (as defined in Section 3.10(a3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), all bonus, incentive, deferred compensation, stock or stock option plans or arrangements, all severance, change-in-control and other employee fringe benefit plans or arrangements, and all welfare plans or arrangements, whether oral or written, under which any current or former employee, director or independent contractor of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The or any other Person has any present or future right to benefits or under which the Company has made available to Parent complete and correct copies of any liability, whether actual or contingent (the following documents “Benefit Plans”);
(b) As applicable with respect to each material Company Benefit Plan and material Company Benefit ArrangementPlan, the Sellers have made available to the extent applicable: Buyer copies of (i) each current Benefit Plan document, including any amendments, and written summaries of each unwritten Benefit Plan, (ii) all plan documents, trust documents, insurance contracts, service provider custodial agreements and amendments other funding documents relating thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; , (iii) any summary plan description provided under a Benefit Plan, (iv) the three most recent annual reports (Form 5500 filings for the last three (3) years, including and all schedules thereto) filed with the Department of Labor or IRS, annual report, (v) any audited financial statements and any related actuarial reports; (iv) nondiscrimination testing results valuation reports for the last three most recent fiscal years, (3) years; (vvi) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRSIRS determination letter, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; all service provider agreements, and (viii) employee manuals any governmental advisory opinions, rulings, compliance statements, closing agreements or handbooks containing personnel or employee relations policies.similar materials;
(bc) Each Qualified Except as disclosed on Schedule 4.17(c), each Benefit Plan has received a favorable determination letterbeen maintained, operated and administered, in all material respects, in compliance with its terms and any related documents or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified agreements and the trust related thereto applicable provisions of ERISA, the Code and other applicable laws, except in any case in which any Benefit Plan is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, currently required to comply with a provision of ERISA or of the Code, andbut is not yet required to be amended to reflect such provision, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement it has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISAsuch provision of ERISA or of the Code. Without limiting the generality of the foregoing, the CodeCompany has timely corrected any failure of the Xxxxx Appliances, Inc. Employees Retirement Plan to comply with the Patient Protection and Affordable Care Act (“ACA”nondiscrimination provisions of Section 401(a)(4) of the Code and the Health Insurance Portability regulations issued thereunder and Accountability Act. With respect to each the Company has incurred no liability for excise taxes in connection therewith;
(d) No Benefit Plan and Company Benefit Arrangement, (iis a “multiemployer plan” within the meaning of Section 3(37) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effectof ERISA. Neither the Company nor any ERISA Affiliate has ever contributed to or had any obligation to contribute to, or withdrawn from, any “multiemployer plan” or had any fixed or contingent liability under Section 4204 of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.ERISA;
(ce) Neither The Benefit Plans which are “employee pension benefit plans” within the Company nor any meaning of its Subsidiaries has, within six Section 3(2) of ERISA and which are intended to meet the qualification requirements of Section 401(a) of the Code (6each a “Pension Plan”) years prior have received determination letters from the IRS to the date of this Agreement, maintained, sponsored or been required to contribute to any effect that such Pension Plan. There Plans are qualified and the related trusts are exempt from federal income taxes and no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries determination letter with respect to any Pension Plan has been revoked, and no event has occurred which would cause the revocation of any such determination letter or which requires or could require action under the compliance resolution programs of the IRS to preserve such qualification;
(f) Neither the Company, the Benefit Plans nor any other Person have engaged in a prohibited transaction, as defined under Section 4975 of the Code or Section 406 of ERISA, which could subject the Company, either directly or indirectly through an obligation to indemnify or otherwise, to any taxes, penalties or other liabilities under Section 4975 of the Code or Sections 409 or 502(i) of ERISA;
(g) All contributions to any Pension Plan, with respect to or on behalf of employees of the Company, which have been required in accordance with the terms of such Benefit Plan through the Closing Date have been timely made or accrued. No Pension Plan is subject to Part 3, Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code. Neither the Company nor any ERISA Affiliate has ever contributed to, or had any obligation to contribute to, any plan subject to Part 3, Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code;
(h) Each Benefit Plan that is a “group health plan” within the meaning of ERISA Section 607(1) or Code Section 5000(b)(1), and each “group health plan,” within the meaning of such sections maintained by any ERISA Affiliate or to which any ERISA Affiliate has contributed or had an obligation to contribute, has been operated in compliance in all material respects with the applicable continuation coverage requirements of Part 6, Subtitle B of Title I of ERISA Affiliate.and Code Section 4980B and of similar state law (together, “COBRA”);
(di) There No Benefit Plan provides, with respect to employees of the Company, death, medical or other welfare benefits beyond termination of service or retirement other than (A) coverage mandated by law or (B) benefits under a Benefit Plan qualified under Code Section 401(a);
(j) With respect to any Benefit Plan, no actions, audits, investigations, suits or claims (other than routine claims for benefits in the ordinary course) are no pending or, to the knowledge Knowledge of the CompanySellers, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).threatened;
(ek) Except as set forth on Section 3.10(e) The consummation of the Company Disclosure Schedule, no Company Benefit Plan transactions contemplated by this Agreement will not result in or Company Benefit Arrangement contains any provision or is subject satisfy a condition to any Law that, as a result the payment of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute would, in combination with any other payment, result in an “excess parachute payment” under within the meaning of Section 280G 280G(b) of the Code. ;
(l) No Company Benefit Plan is or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any has ever formed part of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any a “multiple employer welfare arrangement” as defined in within the meaning of ERISA Section 3(40) of ERISA.);
(hm) The Company Benefit Plans Except as described on Schedule 4.17(m), the execution of this Agreement and Company Benefit Arrangements have been documented and administered in accordance with Section 409A the consummation of the Code transactions contemplated hereby will not, by themselves or in all material respects.combination in any other event, result in any payment (whether of severance pay or otherwise) becoming due from or under any Benefit Plan, including, without limitation, the X. X. Xxxxx Supplemental Executive Retirement Plan, to any current or former director, consultant or employee of the Company or result in the vesting, acceleration of payment or increases in the amount of any benefit payable to or in respect of any such current or former director, consultant or employee;
(in) Neither No communication, report or disclosure has been made which, at the time made, did not accurately reflect the terms and operations of any Benefit Plan, and the Company nor any of has not announced its Subsidiaries maintains intention or has maintained undertaken (whether or not legally bound) to modify or terminate any Benefit Plan or to adopt any arrangement or program that, once established, would come into the definition of Benefit Arrangement covering Plan;
(o) Except as disclosed on Schedule 4.17(o), no employee of the Company is on long-term disability leave, receiving benefits pursuant to workers’ compensation legislation or on leave of absence, including any current leave of absence by reason of disability or pursuant to the Family and Medical Leave Act of 1993 or the Uniformed Services Employment and Reemployment Rights Act of 1994. Except as disclosed on Schedule 4.17(o), no present or former employee of the Company or any child or present or former spouse of its Subsidiaries that any present or former employee of the Company is receiving benefits under any Benefit Plan pursuant to COBRA or was subject is entitled to elect COBRA coverage under any Benefit Plan as a result of an event occurring prior to the Laws Closing Date;
(p) Schedule 4.17(p) sets forth a list of (1) each Person, whether or not an employee, director or contractor of the Company, who, at any time within the two year period immediately preceding the date of this Agreement has received, or at anytime hereafter is entitled to receive, any benefits or perquisites from the Company which were not provided pursuant to a Benefit Plan listed in Schedule 4.17(a), including, without limitation, purchase of Company inventory at a discount, use of Company inventory, use of company vehicles or other real or personal property of the Company, relocation assistance, health plan coverage, financial planning assistance or similar benefits, and (2) a description of each such benefit or perquisite; and
(q) Neither the Company nor the Sellers have used the services of third party contract labor suppliers, temporary or leased employees, independent contractors or other contingent workers to an extent that could result in the disqualification of any jurisdiction outside Benefit Plan or the imposition of the United Statespenalties or Taxes with respect thereto by any Taxing Authority.
Appears in 2 contracts
Samples: Merger Agreement (HHG Distributing, LLC), Merger Agreement (Hhgregg, Inc.)
Employee Benefit Plans. (a) Section 3.10(a3.11(a) of the Company Disclosure Schedule contains sets forth a correct true and complete list of all material employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA, and all bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, welfare, retirement, severance, change-in-control or other compensatory or benefit plans, programs, policies or arrangements and all retention, bonus, employment, termination, severance or other contracts or agreements to which Company or any of its Subsidiaries or any of their respective ERISA Affiliates (as hereinafter defined) is a party, with respect to which Company or any of its Subsidiaries or any of their respective ERISA Affiliates has any current or future obligation, contingent or otherwise, or that are maintained, contributed to or sponsored by Company or any of its Subsidiaries or any of their respective ERISA Affiliates for the benefit of any current or former employee, officer, director or independent contractor of Company or any of its Subsidiaries or any of their respective ERISA Affiliates (all such plans, programs, policies, arrangements, contracts or agreements, whether or not listed in Section 3.11(a) of the Disclosure Schedule, collectively, the “Company Benefit Plans and material Company Benefit Arrangements. The Plans”).
(b) Company has delivered or made available to Parent true, correct and complete and correct copies of the following documents with respect to (as applicable): (i) the written document evidencing each material Company Benefit Plan and material Company Benefit Arrangementor, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating with respect to any such plan or arrangement; that is not in writing, a written description of the material terms thereof, (iiiii) the annual report (Form 5500 filings 5500), if any, filed with the IRS for the last three (3) plan years, including all schedules thereto(iii) the most recently received IRS determination letter, annual reportif any, financial statements and any related actuarial reports; relating to a Company Benefit Plan, (iv) nondiscrimination testing results for the last three (3) years; most recently prepared actuarial report or financial statement, if any, relating to a Company Benefit Plan, (v) the most recent summary plan description description, if any, for such Company Benefit Plan (or other descriptions of such Company Benefit Plan provided to employees) and summaries of material all modifications thereto; , (vi) all material notices correspondence with the U.S. Department of Labor or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices all amendments, modifications or other written communications material supplements to employees; any Company Benefit Plan, and (viii) employee manuals any related trust agreements, insurance contracts or handbooks containing personnel documents of any other funding arrangements that are currently in effect (or employee relations policiesfor which there is any Liability) relating to a Company Benefit Plan. Except as specifically provided in the foregoing documents delivered or made available to Parent, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans.
(bc) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been established, operated and administered in all material respects in accordance with its terms and with the requirements of all applicable Laws, including ERISA, ERISA and the Code, Code (including all applicable aspects of the Patient Protection and Affordable Care Act (“ACA”Act, as amended) and as well as the Health Insurance Portability and Accountability ActAct of 1996, as amended (“HIPAA”). With respect to each Each Company Benefit Plan that constitutes a group health plan subject to Code § 4980H is, or will be, prepared to determine and Company Benefit Arrangementoffer coverage to full-time employees as required to avoid the excise taxes under Code § 4980H. Except as set forth on Section 3.11(c) of the Disclosure Schedule, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the neither Company nor any of its Subsidiaries is liable has taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, the U.S. Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan, and to the Knowledge of Company and its Subsidiaries, there are no material plan defects that would qualify for correction under any such program.
(d) All contributions required to be made to any Company Benefit Plan by applicable Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, for any penalty period through the date hereof, have been timely made or excise taxes assessable paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of Company.
(e) Each Company Benefit Plan that is in any part a “nonqualified deferred compensation plan” subject to Section 409A of the Code (A) complies and, at all times after December 31, 2008 has complied, both in form and operation, in all material respects with the requirements of Section 409A of the Code and the final regulations and other applicable guidance thereunder and (B) between January 1, 2005 and December 31, 2008 was operated in good faith compliance with Section 409A of the Code, as determined under ACAapplicable guidance of the U.S. Department of the Treasury and the IRS. Each individual classified as an independent contractor or other non-employee classification No compensation payable by the Company or any of its Subsidiaries has been properly classified reportable as nonqualified deferred compensation in the gross income of any individual or entity, and subject to an additional tax, as a result of the operation of Section 409A of the Code. No assets set aside for purposes the payment of participation and benefit accrual benefits under any “nonqualified deferred compensation plan” are held outside of the United States, except to the extent that substantially all of the services to which such benefits are attributable have been performed in the jurisdiction in which such assets are held.
(f) Section 3.11(f) of the Disclosure Schedule identifies each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code (the “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan and Company Benefit Arrangementthe related trust that has not been revoked, except as and, to the Knowledge of Company, there are no existing circumstances and no events have occurred that could not reasonably adversely affect the qualified status of any Qualified Plan or the related trust. Each trust created under any Qualified Plan has been determined to be expected to have a Material Adverse Effect.
(cexempt from Tax under Section 501(a) Neither of the Code and neither Company nor any of its Subsidiaries hasis aware of any circumstances that could result in the revocation of the exemption. No trust funding any Company Benefit Plan is intended to meet the requirements of Section 501(c)(9) of the Code.
(g) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code (a “Pension Plan”) had, within six (6) years prior to as of the date of this Agreementits most recent actuarial valuation, maintainedassets measured at fair market value at least equal to its “funding target” as that term is defined in Section 430 of the Code. Since the date of the most recent actuarial valuation, sponsored no event has occurred that would be reasonably expected to adversely change any such funded status in a material way. Any Company Benefit Plan that is a Pension Plan has satisfied its “minimum funding standard” within the meaning of Section 412 of the Code or been Section 302 or ERISA. All required to contribute contributions with respect to any Pension Plan. There are Plan have been timely made and there is no current or contingent Liabilities that could reasonably be Lien, nor is there expected to be imposed upon a Lien, under Section 430(k) of the Code or ERISA Section 303(k) or Tax under Section 4971 of the Code. Neither Company nor any of its Subsidiaries has provided, or is required to provide, security to any of its Pension Plans pursuant to Section 412 of the Code. All premiums required to be paid under ERISA Section 4007 have been timely paid by Company and its Subsidiaries. No Liability under Title IV of ERISA has been or is expected to be incurred by Company or any of its Subsidiaries with respect to any Pension Plan currently or formerly maintained by an any of them or by any of their ERISA AffiliateAffiliates that has not been satisfied in full (other than Liability for Pension Benefit Guaranty Corporation premiums, which have been paid when due).
(dh) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations ordersi) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan is a “multiemployer plan” within the meaning of Section 4001(a)(3) 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”); (ii) none of Company Benefit Arrangement and its Subsidiaries nor any of their respective ERISA Affiliates has, at any time during the last six (6) years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan; and (iii) none of Company and its Subsidiaries nor any of their respective ERISA Affiliates has received notice incurred any liability to a Multiemployer Plan as a result of an audit a complete or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department partial withdrawal from such Multiemployer Plan, as those terms are defined in Part I of Labor)Subtitle E of Title IV of ERISA.
(ei) Except as set forth on Section 3.10(e3.11(i) of the Company Disclosure Schedule, no neither Company Benefit Plan nor any of its Subsidiaries sponsors, has sponsored or Company Benefit Arrangement contains has any provision or is subject obligation with respect to any Law thatemployee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees or beneficiaries or dependents thereof, except as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A required by Section 4980B of the Code. Company and each of its Subsidiaries have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for health (including retiree health) or life insurance coverage, and no representations or commitments, whether or not written, have been made that would limit Company’s or such Subsidiary’s right to amend, terminate or modify any such benefits.
(fj) Except as set forth on Section 3.10(f3.11(j) of the Company Disclosure Schedule, no 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) result in, cause the vesting, exercisability or delivery of, or increase in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider (including early termination rights or penalties) of Company or any of its Subsidiaries, or result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Company Benefit Arrangement contains or any provision of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide such transactions in conjunction with any payment or compensation that would constitute other event) will be an “excess parachute payment” under within the meaning of Section 280G of the Code. No Company Benefit Plan provides for the gross-up or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA reimbursement of Taxes under Section 4999 or other applicable Laws409A of the Code.
(gk) Except as otherwise identified on Section 3.11(k) of the Disclosure Schedule, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability of Company, its Subsidiaries or any of their ERISA Affiliates following the Closing. Without limiting the generality of the foregoing, neither Company nor any of its ERISA Affiliates has engaged in any transaction described in Section 4069, 4204 or 4212 of ERISA.
(l) Except as set forth on Section 3.11(l) of the Disclosure Schedule, there are no pending claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations that have been asserted or instituted, and, to the Knowledge of Company, no threatened claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations and no set of circumstances exists that may reasonably give rise to a claim or lawsuit, against the Company Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefits Plans or the assets of any of the trusts under any of the Company Benefit Plans that could reasonably be expected to result in any material Liability of Company or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, the U.S. Department of the Treasury, the U.S. Department of Labor, any Multiemployer Plan, any Multiple Employer Plan, any participant in a Company Benefit Plan, or any other party. No Company Benefit Plan is under audit or the subject of an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or, to the Knowledge of the Company, threatened.
(m) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute has engaged in a transaction with respect to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the that would subject Company or any of its Subsidiaries to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA. Neither Company nor, to the Knowledge of Company, any administrator or fiduciary of a Company Benefit Plan (or any agent of any of the foregoing) has engaged in any transaction, or acted or failed to act in any manner with respect to such Company Benefit Plan that could subject Company or any of its Subsidiaries to any direct or indirect Liability (by indemnity or otherwise) for breach of any fiduciary, co-fiduciary or any other duty under ERISA.
(n) Except as otherwise identified on section 3.11(n) of the Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not (or will not upon termination of employment within a fixed period of time following such consummation) (A) entitle any employee, director or consultant to severance pay, unemployment compensation or any other payment, or (B) accelerate the time of payment or vesting or increase the amount of payment with respect to any compensation due to any employee director or consultant.
(o) No written, nor to the Knowledge of Company, oral representation or communication with respect to any aspect of a Company Benefit Plan has been made to any employee that is not in accordance with the written or was subject otherwise pre-existing terms and provisions of such plans.
(p) Any Company Benefit Plan can be terminated without resulting in any liability to the Laws of Company or any jurisdiction outside Subsidiary of the United StatesCompany for any additional contributions, penalties, premiums, fees, fines, excise taxes, or any other charges or liabilities.
Appears in 2 contracts
Samples: Merger Agreement (Southside Bancshares Inc), Merger Agreement (OmniAmerican Bancorp, Inc.)
Employee Benefit Plans. (a) Schedule 3.13 of the Simon Disclosure Schedule lists all employee compensation and benefit plans, agreements, commitments, practices or arrangements of any type including, but not limited to, plans described in Section 3.10(a3(3) of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), all unexpired bonus, stock option, phantom stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance, separation, resignation and other similar employee benefit plans, written or otherwise, for the benefit of, or relating to, any current or former employee of each Company Disclosure Schedule contains or any trade or business (whether or nor incorporated) which is a correct and complete list member of all material a controlled group or which is under common control with any Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies within the meaning of Sections 414(b), (c), (m) or (o) of the following documents Code or Section 4001 of ERISA (hereinafter a "Simon ERISA Affiliate"), offered, maintained or contributed to by Simon or a Simon ERISA Affiliate, or with respect to each which any Company or a Simon ERISA Affiliate has or reasonably could be expected to have any liability, whether direct or indirect, actual or contingent (collectively, the "Simon Benefit Plans"). There are no material compensation or benefit plans, agreements, commitments, practices or arrangements of any type providing benefits to employees or directors of any Company or a Simon ERISA Affiliate, or with respect to which any Company or a Simon ERISA Affiliate has or reasonably could be expected to have any liability other than the Simon Benefit Plan and material Company Plans. With respect to such Simon Benefit Arrangement, to the extent applicable: Plans:
(i) all plan documents, trust documentsEach such Simon Benefit Plan (and each related trust, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Laborcontract, or any other Governmental Authority on or after January 1, 2014; (viifund) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance compliance with its terms and complies in form and in operation in all material respects with all the applicable Laws, including requirements of ERISA, the Code, the Patient Protection and Affordable Care Act other applicable laws, rulings and authority issued thereunder.
(“ACA”ii) All required reports and the Health Insurance Portability descriptions (including Form 5500 Annual Reports, Summary Annual Reports, PBGC-1's, and Accountability Act. With Summary Plan Descriptions) have been timely filed or distributed appropriately with respect to each Company such Simon Benefit Plan as required by ERISA, the Code and Company other applicable law. The requirements of Sections 601-609 of ERISA and of Section 4980B of the Code have been met with respect to each such Simon Benefit ArrangementPlan which is an "Employee Welfare Benefit Plan," within the meaning of Section 3(1) of ERISA.
(iii) All contributions, premiums or other payments (iincluding all employer and employee contributions) which are due have been paid to each Simon Benefit Plan. There are no non-exempt transactions prohibited unfunded benefit obligations with respect to Simon Benefit Plans which have not been accounted for by Code Section 4975 records, or otherwise properly footnoted in accordance with generally accepted accounting principles on the financial statements of Simon or a Simon ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be Affiliate, whichever is applicable, which obligations are expected to have a Material Adverse Effect. Neither the Company nor Effect on any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an Simon ERISA Affiliate.
(div) There are no pending orSimon and the Shareholders have made available to Cyrk, to the knowledge true, correct and complete copies of the CompanySimon Benefit Plan documents, threatened Actions (the most recent determination letter received from the Internal Revenue Service, if applicable, the three most recent Form 5500 Annual Reports, and all related trust agreements, insurance contracts, investment management agreements, any and all other than routine benefit claims funding agreements which implement each Simon Benefit Plan, any and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements all material employee communications (including any such claim against any fiduciary all summary plan descriptions and material modifications thereto), the most recent account of plan assets, if applicable, and, in the case of any such Company Benefit Plan unfunded or Company Benefit Arrangement). No Company Benefit Plan self-insured plan or Company Benefit Arrangement has received notice arrangement, a current estimate of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS accrued and the Department of Labor)anticipated liabilities thereunder.
(eb) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company With respect to each Simon Benefit Plan that any Company or a Simon ERISA Affiliate maintains or ever has maintained or to which any Company Benefit Arrangement contains any provision or is subject to any Law thata Simon ERISA Affiliate contributes, as a result of the Transactions or upon related, concurrentever has contributed, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or ever has been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.contribute:
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any No such Simon Benefit Plan which is an Employee Pension Benefit Plan has been completely or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.partially
Appears in 2 contracts
Samples: Merger Agreement (Brown Allan), Merger Agreement (Brown Allan)
Employee Benefit Plans. (a) Section 3.10(a2.16(a) of the Company Li3 Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents lists, with respect to each material Company Benefit Plan Li3 and material Company Benefit Arrangementthe Li3 Subsidiaries, to the extent applicable: (i) all plan documentsemployee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, trust documentsas amended (“ERISA”)), insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions material loans from Li3 to officers and directors other than advances for expense reimbursements incurred in the ordinary course of all material non-written agreements relating to any such plan or arrangement; business, (iii) Form 5500 filings for the last three any securities option, securities stock purchase, phantom securities, securities appreciation right, equity-related, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (3Code section 125) yearsor dependent care (Code Section 129), including all schedules theretolife insurance or accident insurance plans, annual reportprograms, financial statements and any related actuarial reports; agreements or arrangements, (iv) nondiscrimination testing results for the last three (3) years; all bonus, pension, retirement, profit sharing, savings, deferred compensation or incentive plans, programs, policies, agreements or arrangements, (v) the most recent summary plan description other material fringe, perquisite, or employee benefit plans, programs, policies, agreements or arrangements, and summaries of material modifications thereto; (vi) all any current or former employment, change of control, retention or executive compensation, termination or severance plans, programs, policies, collective bargaining, agreements or arrangements, written or otherwise, as to which material notices unsatisfied liabilities or other communications received from obligations, contingent or otherwise, remain for the IRS, Department of Laborbenefit of, or relating to, any other Governmental Authority on present or after January 1former employee, 2014; consultant, manager or director, or which could reasonably be expected to have any material liabilities or obligations (viitogether, the “Li3 Benefit Plans”). The term Li3 Benefit Plans also includes all benefit plans subject to Title IV of ERISA in connection with which any trade or business (whether or not incorporated) required notices that is treated as a single employer with Li3 and the Li3 Subsidiaries within the meaning of Section 414(b), (c), (m) or other written communications to employees; and (viiio) employee manuals or handbooks containing personnel or employee relations policiesof the Code (a “Li3 ERISA Affiliate”) may have any liability.
(b) Each Qualified Other than as would not reasonably be expected to result in a Li3 Material Adverse Effect, (i) there has been no “prohibited transaction,” as such term is defined in Section 406 of ERISA and Section 4975 of the Code, by Li3 or by any trusts created thereunder, any trustee or administrator thereof or any other Person, with respect to any Li3 Benefit Plan, (ii) each Li3 Benefit Plan has received a favorable determination letterbeen administered in material accordance with its terms and in compliance in all material respects with the requirements prescribed by any and all applicable Laws (including ERISA and the Code), (iii) Li3 and each Li3 ERISA Affiliate have performed in all material respects all obligations required to be performed by them under, are not in any respect in default under or violation of, and have no knowledge of any default or violation by any other party to, any of Li3 Benefit Plans that are subject to Title IV of ERISA, and (iv) all contributions and premiums required to be made by Li3 or any Li3 ERISA Affiliate to any Li3 Benefit Plan have been made on or before their due dates, including any legally permitted extensions. Except with respect to claims for benefits in the ordinary course, no Action has been brought, or to the knowledge of Li3 is threatened, against or with respect to any such Li3 Benefit Plan, including any audit or inquiry by the Internal Revenue Service (“IRS”), United States Department of Labor (the “DOL”) or other Governmental Authority (other than as would not reasonably be expected to result in a Li3 Material Adverse Effect). Each Li3 Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and any awards thereunder, in each case that is subject to Section 409A of the Code, has been operated in good faith compliance, in all material respects, with Section 409A of the Code since January 1, 2005. Each Li3 Benefit Plan that is intended to be qualified under Section 401(a) of the Code is the subject of a favorable advisory or opinion determination letter as from the IRS upon which the sponsor of such Li3 Benefit Plan is entitled to its qualificationrely, issued by the Internal Revenue Service (the “IRS”) has applied to the effect that IRS for such plan is qualified and favorable determination letter within the trust related thereto is exempt from federal income taxes applicable remedial amendment period under Sections 401(aSection 401(b) and 501(a), respectively, of the Code, andor is maintained pursuant to a volume submitter or prototype document for which it may properly rely on the applicable advisory or opinion letter, to and neither Li3 nor any Li3 Subsidiary is aware of any circumstances that could result in revocation of any such favorable determination letter or the knowledge loss of the Company, no act or omission in the operation qualification of such plan has occurred that could adversely affect its qualified status. Each Company Li3 Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, under Section 401(a) of the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither Except as disclosed in Section 2.16 of the Company nor any of its Subsidiaries hasLi3 Disclosure Schedule, within six (6) years prior to the date of or as otherwise provided in this Agreement, maintainedany ancillary agreement related hereto or as provided by applicable Law, sponsored with respect to Li3 Benefit Plans, the consummation of the transactions contemplated by this Agreement and any ancillary agreement related hereto to which Li3 is a party, will not, either alone or been required to contribute to in combination with any Pension Plan. There are no other event or events, (i) entitle any current or contingent Liabilities that could reasonably be expected to be imposed upon the Company former employee, manager, director or consultant of Li3 or any of its the Li3 Subsidiaries to any payment of severance pay, golden parachute payments, or bonuses, (ii) accelerate, forgive indebtedness, vest, distribute, or increase benefits or obligation to fund benefits with respect to any Pension Plan maintained by an ERISA Affiliateemployee or director of Li3 or any of the Li3 Subsidiaries, or (iii) accelerate the time of payment or vesting of options to purchase securities of Li3, or increase the amount of compensation due any such employee, director or consultant.
(d) There are no pending or, to the knowledge None of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Li3 Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject requiring a gross-up pursuant to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections Section 280G or 409A of the CodeCode or similar Tax provisions.
(e) No Li3 Benefit Plan maintained by Li3 or any of the Li3 Subsidiaries provides material benefits, including death or medical benefits (whether or not insured), with respect to current or former employees of Li3 or any of the Li3 Subsidiaries after termination of employment (other than (i) coverage mandated by applicable Laws, (ii) death benefits or retirement benefits under any “employee pension benefit plan,” as that term is defined in Section 3(2) of ERISA, or (iii) benefits, the full direct cost of which is borne by the current or former employee (or beneficiary thereof)).
(f) Except Neither Li3 nor any Li3 ERISA Affiliate has any liability with respect to any (i) employee pension benefit plan that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code, (ii) “multiemployer plan” as set forth on defined in Section 3.10(f3(37) of ERISA or (iii) “multiple employer plan” within the meaning of Sections 4063 and 4064 of ERISA or Section 413(c) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” Except as defined set forth in Section 3(402.16(g) of ERISA.
the Li3 Disclosure Schedule, no Li3 Benefit Plan is maintained outside the jurisdiction of the United States (hany such Li3 Benefit Plan set forth in Section 2.16(g) The Company of the Li3 Disclosure Schedule, “Li3 Foreign Benefit Plans”). All Li3 Foreign Benefit Plans and Company Benefit Arrangements have been documented established, maintained and administered in accordance with Section 409A of the Code compliance in all material respects.
(i) Neither respects with their terms and all applicable statutes, laws, ordinances, rules, orders, decrees, judgments, writs, and regulations of any controlling governmental authority or instrumentality and all Li3 Foreign Benefit Plans that are required to be funded are fully funded, and with respect to all other Li3 Foreign Benefit Plans, adequate reserves therefor have been established in accordance with applicable foreign accounting standards on the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee accounting statements of the Company applicable Li3 or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United StatesLi3 Subsidiary entity.
Appears in 2 contracts
Samples: Merger Agreement (Blue Wolf Mongolia Holdings Corp.), Merger Agreement (Li3 Energy, Inc.)
Employee Benefit Plans. (a) Section 3.10(a3.15(a) of the Company Disclosure Schedule Schedules contains a correct complete and complete accurate list of all material employee compensation, incentive, fringe or benefit plans, programs, policies, commitments, agreements or other arrangements (whether or not set forth in a written document and including, without limitation, all "employee benefit plans" within the meaning of Section 3(3) of ERISA) covering any active or former employee, director or consultant of Company Benefit Plans and material ("Company Benefit Arrangements. The Employee" which shall for this purpose mean an employee of Company or a Code Affiliate of Company), any Subsidiary of Company, or with respect to which Company has made or, to its knowledge, may in the future have Liability (collectively, the "Company Plans"). Company has provided or will make available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, prior to the extent applicableClosing: (i) true and complete copies of all plan documentsdocuments embodying each Company Plan including, without limitation, all amendments thereto, all trust documentsdocuments related thereto, insurance contracts, service provider and all material written agreements and amendments theretocontracts relating to each such Company Plan; (ii) written descriptions of the most recent annual reports (Form Series 5500 and all material non-written agreements relating to any such plan schedules and financial statements attached thereto), if any, required under ERISA or arrangementthe Code in connection with each Company Plan; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries together with the summary(ies) of material modifications thereto, if any, required under ERISA with respect to each Company Plan; (iv) all IRS determination, opinion, notification and advisory letters relating to each Company Plan; (v) all material correspondence to or from any Governmental Authority relating to each Company Plan; (vi) all material forms and related notices or other communications received from required under the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014COBRA; (vii) required notices or other written communications to employeesthe most recent discrimination tests for each Company Plan; (viii) the most recent actuarial valuations, if any, prepared for each Company Plan; (ix) if the Company Plan is funded, the most recent annual and periodic accounting of the Company Plan assets; and (viiix) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect communication to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) Employees relating to any Company Benefit Plans or Plan and any proposed Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure SchedulePlan, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject in each case, relating to any Law thatamendments, as a result terminations, establishments, increases or decreases in benefits, acceleration of the Transactions payments or upon related, concurrentvesting schedules, or subsequent employment termination, other events which would (i) increase, accelerate or vest result in any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject material liability to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United StatesCode Affiliate.
Appears in 2 contracts
Samples: Merger Agreement (Quantum Corp /De/), Merger Agreement (Maxtor Corp)
Employee Benefit Plans. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedule contains a correct and complete list of lists all material employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all material bonus, stock option, stock purchase, restricted stock, stock appreciation right, restricted stock unit, phantom equity, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all material employment, termination, severance or other contracts or agreements to which the Company Benefit Plans or any Company Subsidiary is a party, with respect to which the Company or any Company Subsidiary has any obligation or which are maintained, contributed to or sponsored by the Company or any Company Subsidiary for the benefit of any current or former employee, officer, director or consultant of the Company or any Company Subsidiary other than any such benefit plans, programs, arrangements, contracts or agreements maintained outside of the United States primarily for the benefit of current or former employees, officers, directors or consultants of the Company or any Company Subsidiary working outside of the United States or who worked outside of the United States and material Company Benefit Arrangementswhich is subject to the laws of any jurisdiction outside of the United States (such plans hereinafter being referred to as “Non-U.S. Plans”) (collectively, the “U.S. Plans”). Neither Company, any Subsidiary nor, to the knowledge of the Company, any other person or entity, has made any express or implied commitment, whether legally enforceable or not, to modify, change or terminate any U.S. Plan or Non-U.S. Plan. The Company has made available to Parent copies, which are correct and complete and correct copies in all material respects, of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicablefollowing: (i) the U.S. Plan and Non-U.S. Plan documents (and all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; ), (ii) written descriptions of all material non-written agreements relating to any such the annual report (Form 5500) filed with the Internal Revenue Service (“IRS”) for the last two plan or arrangement; years, (iii) Form 5500 filings for the last three (3) yearsmost recently received IRS determination letter, including all schedules theretoif any, annual reportrelating to a U.S. Plan, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; most recently prepared actuarial report or financial statement, if any, relating to a U.S. Plan, (v) the most recent summary plan description for such U.S. Plan (or other descriptions of such U.S. Plan provided to employees) and summaries of all material modifications thereto; , and (vi) all material notices filings made with any Governmental Authority, including any filings under the Voluntary Compliance Resolution or other communications received from Closing Agreement Program or the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesLabor Delinquent Filer Program.
(b) Each Qualified U.S. Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered operated in all material respects in accordance with its terms and with the requirements of all applicable Laws, including ERISA, ERISA and the Code. Each U.S. Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion issued by the Patient Protection IRS, and Affordable Care Act (“ACA”) and to the Health Insurance Portability and Accountability Actknowledge of the Company no fact or event has occurred since the date of such determination letter or letters from the IRS to adversely affect the qualified status of any such U.S. Plan or the exempt status of any such trust. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) There has been no non-exempt “prohibited transaction” (and there will be none as a result of the transactions prohibited by contemplated hereby) within the meaning of Section 4975(c) of the Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither of ERISA involving the Company nor assets of any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse EffectU.S. Plan.
(c) Neither the Company nor any Company Subsidiary sponsors or has sponsored any U.S. Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or any Company Subsidiary, except as required by Section 4980B of the Code. Neither the Company, any of its Subsidiaries has, within or any ERISA Affiliate of the Company is or was during the preceding six (6) years prior to the date of this Agreement, maintained, sponsored or been required obligated to contribute to any Pension multiemployer plan as defined in Section 4001(a)(3) of ERISA (a “Multiemployer Plan. There are no current ”) and none of the Company, any of its Subsidiaries, or contingent Liabilities that could reasonably be expected to be imposed upon any ERISA Affiliate of the Company or has assumed any obligation of any predecessor of the Company, any of its Subsidiaries or any ERISA Affiliate of the Company with respect to any Pension Plan maintained by an ERISA AffiliateMultiemployer Plan.
(d) There Full payment has been made, or otherwise properly accrued on the books and records of the Company and any Company Subsidiary, of all amounts that the Company and any Company Subsidiary are required under the terms of the U.S. Plans to have paid as contributions to such Plans on or prior to the date hereof (excluding any amounts not yet due).
(e) Except as set forth in Section 4.10(e) of the Company Disclosure Schedule, no U.S. Plan, either individually or collectively, provides for any payment by the Company or any Company Subsidiary that would constitute a “parachute payment” within the meaning of Section 280G of the Code after giving effect to the transactions contemplated by this Agreement.
(f) Neither the Company nor any ERISA Affiliate sponsors or has sponsored in the past six years any U.S. Plan (or United States based pension plan in the case of an ERISA Affiliate) that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. For purposes of this Section 4.10, an entity is an “ERISA Affiliate” of the Company if it would have ever been considered a single employer with the Company under 4001(b) of ERISA or part of the same controlled group as the Company for purposes of Section 302(d)(8)(C) of ERISA.
(g) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each U.S. Plan that constitutes a nonqualified deferred compensation plan for purposes of Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code and all applicable guidance from the Internal Revenue Service.
(h) Section 4.10(h) of the Company Disclosure Schedule contains a list of each material Non-U.S. Plan. Except as set forth on Section 4.10(h) of the Company Disclosure, each Non-U.S. Plan: (i) has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, (ii) if such Non-U.S. Plan is intended to qualify for special tax treatment, the Non-U.S. Plan meets all requirements for such treatment, provided that failure to qualify for such treatment would reasonably be expected to have a Material Adverse Effect, (iii) if such Non-U.S. Plan is intended to be funded and/or book-reserved, then such Non-U.S. Plan is funded and/or book reserved, as appropriate and required by applicable Laws, based upon reasonable actuarial assumptions under applicable Law of the jurisdiction in which such Non-U.S. Plan is maintained, and (iv) no material liability exists or reasonably could be imposed upon the assets of the Company or any Company Subsidiary with respect to any such Non-U.S. Plan. As of the date hereof, there is no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) material litigation relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Non-U.S. Plan.
(ei) Except as set forth on in Section 3.10(e4.10(i) of the Company Disclosure Schedule, no neither the Company Benefit Plan or Company Benefit Arrangement contains nor any provision or Subsidiary is subject a party to any Law thatcollective bargaining agreement, and as a result of the Transactions date hereof, there have been no organizational or upon relatedrepresentational activities or attempts. There are no unresolved unfair labor practice or labor arbitration proceedings, concurrentand no suits, charges, grievances or subsequent employment terminationattorney demand letters, would (i) increasepending or threatened against the Company or any Subsidiary before the National Labor Relations Board, accelerate or vest any compensation or benefitor, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A the knowledge of the Code.
(f) Except as set forth on Section 3.10(f) Company, threatened against the Company or any Subsidiary. There has been no material work stoppage, strike or other concerted action by employees of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of Subsidiary during the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Codepast three years. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to Subsidiary is currently engaged in any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) material unfair labor practice. The Company Benefit Plans and Company Benefit Arrangements have been documented and administered each Subsidiary is in accordance with Section 409A of the Code compliance in all material respects.
(i) respects with all applicable Laws, Contracts, and employment policies, relating to employment practices, wages, hours, and other terms and conditions of employment, employment standards, human rights, occupational safety, workers’ compensation, immigration, and plant closings. The Company and each Subsidiary has withheld all amounts required by Law or by agreement to be withheld from the wages, salaries and other payments to its employees, and is not liable in any material respect for any arrears of wages or any taxes or any penalty for failure to comply with any of the foregoing. Neither the Company nor any Subsidiary is liable for any payment to any trust or other fund or to any Governmental Authority with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of business and consistent with past practice). There are no material pending claims against the Company or any of its Subsidiaries that is Subsidiary under any workers’ compensation plan or was subject to the Laws of any jurisdiction outside of the United Statespolicy or for long term disability.
Appears in 2 contracts
Samples: Merger Agreement (PRA International), Merger Agreement (PRA International)
Employee Benefit Plans. (a) Section 3.10(a) Prior to the date of this Agreement, Parent has Made Available to the Company Disclosure Schedule contains a true, correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents copy of, with respect to each material Company Benefit Plan Parent, any Parent Subsidiary and material Company Benefit Arrangementany ERISA Affiliate, to the extent applicable: (i) all employee benefit plans within the meaning of Section 3(3) of ERISA, (ii) all stock option, stock purchase, phantom stock, stock appreciation right, stock-based compensation, supplemental retirement, severance, sabbatical, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (iii) all bonus, pension, profit sharing, savings, retirement, deferred compensation or incentive plans, programs and arrangements, and (iv) other fringe and employee benefit plans, programs or arrangements that apply to senior management and that do not generally apply to all employees under which any of Parent or any Parent Subsidiary or ERISA Affiliate could reasonably be expected to have any liability (all of the foregoing described in clauses (i) through (iv), collectively, the "Parent Benefit Plans"), and any related plan documentsdocuments (including adoption agreements, vendor Contracts and administrative services agreements, trust documents, insurance contractspolicies or Contracts, service provider agreements including policies relating to fiduciary liability insurance, bonds required by ERISA, amendments to the Parent Benefit Plans, employee booklets, summary plan descriptions, and amendments summaries of material modifications and any material employee communications of Parent relating to changes to the Parent Benefit Plans) and has, with respect to each Parent Benefit Plan that is subject to ERISA reporting requirements, Made Available to the Company true, correct and complete copies of the Form 5500 reports filed (including all audits, financial statements, schedules and attachments thereto; (ii) written descriptions of all material ), and any applicable non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings discrimination tests conducted, for the last three (3) plan years. Each Parent Benefit Plan can be amended, including all schedules theretoterminated or otherwise discontinued as of the Closing Date in accordance with its terms, annual reportwithout liability to Parent or its Subsidiaries. Any Parent Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has obtained from the IRS a current favorable determination letter as to its qualified status under the Code. Parent has also Made Available to the Company a true, financial statements correct and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) complete copy of the most recent summary such IRS determination letter, with respect to each such the Parent Benefit Plan, and nothing has occurred since the issuance of each such letter that could reasonably be expected to cause the loss of the Tax-qualified status of any Parent Benefit Plan subject to Section 401(a) of the Code. Parent has also Made Available to the Company all registration statements and prospectuses and investment policy statements prepared in connection with each Parent Benefit Plan. All individuals who, pursuant to the terms of any Parent Benefit Plan, are entitled to participate in any Parent Benefit Plan, are currently participating in such Parent Benefit Plan or have been offered an opportunity to do so and have declined in writing. Except as otherwise disclosed on Section 5.10(a) of the Parent Disclosure Schedule, neither the Parent nor any Parent Subsidiary nor any ERISA Affiliate sponsors or maintains any self-funded employee benefit plan, including any plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policieswhich a stop-loss policy applies.
(b) Each Qualified Plan None of the Parent Benefit Plans promises or provides retiree medical or other retiree welfare benefits to any Person other than as required under COBRA or applicable state law. There has received a favorable determination letter, or is been no "prohibited transaction" (within the subject meaning of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified Section 406 of ERISA and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, Section 4975 of the Code, and, ) with respect to the knowledge any Parent Benefit Plan that is not exempt under Section 408 of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified statusERISA. Each Company Parent Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with the requirements prescribed by any and all applicable Lawsstatutes, rules and regulations (including ERISA, ERISA and the Code), and Parent, each Parent Subsidiary and each ERISA Affiliate has performed all obligations required to be performed by it under, is not in default under or in violation of, and has no knowledge of any default or violation by any other party to, any of the Patient Protection Parent Benefit Plans. Neither Parent nor any Parent Subsidiary or ERISA Affiliate is subject to any liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any of the Parent Benefit Plans. All contributions required to be made by Parent, any Parent Subsidiary or any ERISA Affiliate to any Parent Benefit Plan have been made on or before their due dates and, to the extent required by GAAP, all amounts have been accrued for the current plan year (and Affordable Care Act (“ACA”) no further contributions will be due or will have accrued thereunder as of the Closing Date, other than contributions accrued in the ordinary course of business, consistent with past practice, after the Parent Balance Sheet Date as a result of the operations of Parent and the Health Insurance Portability Parent Subsidiaries after the Parent Balance Sheet Date). In addition, with respect to each Parent Benefit Plan intended to include a Code Section 401(k) arrangement, Parent and Accountability Acteach Parent Subsidiary and ERISA Affiliate have at all times made timely deposits of employee salary reduction contributions and participant loan repayments, as determined pursuant to regulations issued by the United States Department of Labor. No Parent Benefit Plan is subject to, and neither Parent nor any Parent Subsidiary or ERISA Affiliate has incurred or reasonably expects to incur any liability under Title IV of ERISA (other than for the payment of insurance premiums to the Pension Benefit Guaranty Corporation). No Parent Benefit Plan has an accumulated funding deficiency within the meaning of Section 412 of the Code. With respect to each Company Parent Benefit Plan subject to ERISA as either an employee pension benefit plan within the meaning of Section 3(2) of ERISA or an employee welfare benefit plan within the meaning of Section 3(1) of ERISA, Parent has prepared in good faith and Company timely filed all requisite governmental reports (which were true, correct and complete as of the date filed), including any required audit reports, and has properly and timely filed and distributed or posted all notices and reports to employees required to be filed, distributed or posted with respect to each such Parent Benefit ArrangementPlan. No suit, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor administrative proceeding, action or other non-employee classification litigation has been brought or is threatened, against Parent or any Parent Subsidiary or with respect to any such Parent Benefit Plan, including any audit or inquiry by the Company IRS or any United States Department of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse EffectLabor.
(c) Neither the Company Parent nor any Parent Subsidiary or ERISA Affiliate is a party to, or has made any contribution to or otherwise incurred any obligation under, any "multiemployer plan" as such term is defined in Section 3(37) of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension PlanERISA. There are has been no current termination or contingent Liabilities that could reasonably be expected to be imposed upon partial termination of any Parent Benefit Plan within the Company or any meaning of its Subsidiaries with respect to any Pension Plan maintained by an ERISA AffiliateSection 411(d)(3) of the Code.
(d) There are no pending or, to the knowledge Except as otherwise disclosed on Section 5.10(d) of the CompanyParent Disclosure Schedule, threatened Actions the consummation of the Merger or any other transaction contemplated hereby or any termination of employment or service in connection therewith or subsequent thereto will not (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any Person other than routine benefit claims and proceedings with respect to qualified domestic relations ordersaccrued payments, (ii) relating to materially increase or otherwise enhance any Company Benefit Plans benefits otherwise payable by Parent or Company Benefit Arrangements any Parent Subsidiary, (including any such claim against any fiduciary iii) result in the acceleration of the time of payment or vesting of any such Company Benefit Plan benefits, except as required under Section 411(d)(3) of the Code, (iv) increase the amount of compensation due to any Person, or Company Benefit Arrangement). No Company Benefit Plan (v) result in the forgiveness in whole or Company Benefit Arrangement has received notice in part of an audit any outstanding loans made by Parent or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Parent Subsidiary to any Person.
(e) Except as set forth otherwise disclosed on Section 3.10(e5.10(e) of the Company Parent Disclosure Schedule, no Company neither Parent, any ERISA Affiliate or any Parent Subsidiary has granted, or is a party to any contract that grants, any compensation, equity award or bonus that could be deemed deferred compensation within the meaning of Section 409A of the Code, and neither Parent, any Parent Subsidiary or any ERISA Affiliate has any liability or obligation to make any payments or issue any equity award or bonus that could be deemed deferred compensation within the meaning of Section 409A of the Code. Neither Parent, any Parent Subsidiary or any ERISA Affiliate sponsors, maintains or administers any Parent Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or be deemed a deferred compensation plan within the meaning of Section 409A of the Code.
(f) Each of Parent and each Parent Subsidiary is in compliance in all material respects with all currently applicable Laws respecting employment, discrimination in employment, terms and conditions of employment, worker classification (including the proper classification of workers as independent contractors and consultants), wages, hours and occupational safety and health and employment practices, including the Immigration Reform and Control Act. Parent and each Parent Subsidiary has paid in full to all employees, independent contractors and consultants all wages, salaries, commissions, bonuses, benefits, and other compensation due to or on behalf of such employees, independent contractors or consultants in accordance with applicable Law. Neither Parent nor any Parent Subsidiary is liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistent with past practice). Parent has Made Available to the Company a description of all pending controversies between Parent or any Parent Subsidiary and any of their respective employees, with respect to which the Parent or any Parent Subsidiary has received notice from a Governmental Entity regarding an action, suit, proceeding, claim, arbitration or investigation.
(g) Neither Parent nor any of the Parent Subsidiaries has any obligation to pay any amount or provide any benefit to any former employee or officer, other than obligations (i) for which Parent has established a reserve for such amount on the Parent Balance Sheet in accordance with GAAP and (ii) pursuant to Contracts entered into after the Parent Balance Sheet Date. Neither Parent nor any Parent Subsidiary is a party to or bound by any collective bargaining agreement or other labor union Contract, no collective bargaining agreement is being negotiated by Parent or any Parent Subsidiary and neither Parent nor any Parent Subsidiary has any duty to bargain with any labor organization.
(h) To the knowledge of Parent, no employee of Parent or any Parent Subsidiary is in violation of any term of any employment agreement, patent disclosure agreement, non-competition agreement, or any restrictive covenant to a former employer relating to the right of any such employee to be employed by Parent or any Parent Subsidiary because of the nature of the business conducted or presently proposed to be conducted by Parent or any Parent Subsidiary or to the use of trade secrets or proprietary information of others. No officer (at the level of vice president or above) or director of operations of Parent or any Parent Subsidiary has given notice of termination or resignation to Parent or any Parent Subsidiary, nor does Parent otherwise have knowledge that any such officer or director of operations intends to terminate his or her service with Parent or any Parent Subsidiary. Except as set forth on in Section 3.10(f5.10(h) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result the employment of each of the Transactions employees of Parent or upon relatedany Parent Subsidiary is on an "at will" basis, concurrent, or subsequent employment termination, would require or and Parent and each Parent Subsidiary does not have any obligation to provide any payment particular form or compensation that would constitute an “excess parachute payment” under Section 280G period of notice prior to terminating the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor of any of its Subsidiaries has, within six their respective employees (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” other than as defined in Section 3(40) of ERISAprovided under applicable Law).
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Primedex Health Systems Inc), Merger Agreement (Radiologix Inc)
Employee Benefit Plans. (a) Section 3.10(aSchedule 5.14(a) of the Company Disclosure Schedule contains a correct lists, and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company TPB has delivered or made available to Parent prior to the execution of this Agreement, correct and complete information with respect to and correct copies of all pension, retirement, profit-sharing, employee stock ownership, salary continuation, deferred compensation and split dollar policies, plans and agreements; all director deferral and director retirement policies, plans and agreements; all equity-based policies, plans and agreements relating to grants of stock options, warrants, restricted stock, restricted stock units or other equity awards; all policies, plans and agreements relating to severance pay, vacation and paid-time-off; all cash or equity-based bonus plans and any other incentive plans; all other written or unwritten employee programs, arrangements or agreements; all medical, vision, dental or other health plans, all life and disability insurance plans, flexible spending accounts and all other employee benefit plans or fringe benefit plans, including, without limitation, “employee benefit plans,” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), adopted, maintained by, sponsored in whole or in part by, or contributed to by any TPB Company, any Affiliate of a TPB Company, or any ERISA Affiliate thereof within the last six (6) years for the benefit of employees, retirees, dependents, spouses, directors, independent contractors or other beneficiaries (collectively, the “TPB Benefit Plans”). TPB also has delivered or made available to Parent prior to the execution of this Agreement correct and complete copies of (where applicable) the following documents with respect to each material Company of the TPB Benefit Plan and material Company Benefit Arrangement, to the extent applicablePlans: (i) all summary plan documentsdescriptions, trust documentssummaries of material modifications, insurance contracts, service provider agreements and amendments theretoamendments; (ii) written descriptions of all material non-written agreements relating to any such plan the most recent determination or arrangementopinion letters, as applicable, received from the Internal Revenue Service; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reportsmost recent Form 5500 Annual Reports; (iv) nondiscrimination testing results for the last three (3) yearsmost recent audited financial statements and actuarial valuations; (v) all material related agreements, insurance contracts and other documents that implement or impact the most recent summary plan description TPB Benefit Plan; and summaries of material modifications thereto; (vi) all material any notices to or other communications received from the IRSInternal Revenue Service, any office or representative of the Department of Labor, Labor or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary compliance issues in respect of any such Company TPB Benefit Plan. Any TPB Benefit Plan or Company Benefit Arrangement). that is an “employee pension benefit plan,” as defined in Section 3(2) of ERISA, is referred to herein as a “TPB ERISA Plan.” No Company TPB Benefit Plan is or Company Benefit Arrangement has received notice of an audit or examination been a “defined benefit plan” (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on defined in Section 3.10(e414(j) of the Company Disclosure Schedule, no Company Benefit Plan IRC) or Company Benefit Arrangement contains any provision or is subject to any Law that, a “multi-employer plan” (as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on defined in Section 3.10(f3(37) of the Company Disclosure ScheduleERISA), no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” plan (as defined in Section 3(40) of ERISA) or Section 413(c) of the IRC, or, except as designated on Schedule 5.14(a), a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA), and, except as described on Schedule 5.14(a), no ERISA Affiliate of any TPB Company maintains, sponsors or contributes to, or has ever maintained, sponsored or contributed to, any such employee benefit plan.
(hb) The Company All TPB Benefit Plans and Company Benefit Arrangements the administration thereof are in, and have been documented in, compliance with the applicable terms of ERISA, the IRC and administered any other applicable Laws. Each TPB ERISA Plan that is intended to be qualified under Section 401(a) of the IRC and each corresponding trust exempt under Section 501(a) of the IRC has received a favorable determination letter or may rely upon an opinion letter issued to the sponsor of a prototype or volume submitter arrangement, as applicable, from the Internal Revenue Service, and no Transaction Shareholder is aware of any circumstances that could result in accordance revocation of any such favorable determination letter/opinion letter. No transaction has been entered into with respect to any TPB Benefit Plan that, assuming the taxable period of such transaction expired as of the date hereof, would subject any TPB Company to a Tax or penalty imposed by either Section 4975 of the IRC or Section 502(i) of ERISA. There are no actions, suits, arbitrations or claims, including any investigations or audits by the Internal Revenue Service or any other Governmental Authority pending (other than routine claims for benefits) or threatened against any TPB Benefit Plan, any TPB Company or any ERISA Affiliate with regard to any TPB Benefit Plan, any trust that is a part of any TPB Benefit Plan, or any trustee, fiduciary, custodian, administrator or other Person holding or controlling Assets of any TPB Benefit Plan, and no basis for anticipating any such action, suit, arbitration, claim, investigation or audit exists.
(c) Except as set forth on Schedule 5.14(c), neither the execution and delivery of this Agreement nor the consummation of the Transaction will (i) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise, but excluding the Transaction Consideration) becoming due to any director, officer or employee of any TPB Company from any TPB Company or any Parent Company under any TPB Benefit Plan, employment contract or otherwise, (ii) increase any benefits otherwise payable under any TPB Benefit Plan, or (iii) result in any acceleration of the time of payment or vesting of any such benefit.
(d) With respect to all TPB Benefit Plans (whether or not subject to ERISA and whether or not qualified under Section 401(a) of the IRC), all contributions due (including any contributions to any trust account or payments due under any insurance policy) previously declared or otherwise required by Law or contract to have been made and any employer contributions (including any contributions to any trust account or payments due under any insurance policy) accrued but unpaid as of the date hereof will be paid by the time required by Law or contract. All contributions required to be made under any TPB Benefit Plan have been made by the applicable due date and meet the requirements for deductibility under the IRC, and all contributions that are required and that have not been made have been properly recorded on the books of TPB.
(e) Each contract, arrangement, plan, or TPB Benefit Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the IRC) has been maintained and is, in form and operation, in compliance with Section 409A of the Code in all material respectsIRC and the applicable guidance issued thereunder. No amounts under any such contract, arrangement, plan, or TPB Benefit Plan are or have been subject to the interest or additional tax set forth under Section 409A(a)(1)(B) of the IRC. Except as set forth on Schedule 5.14(e), no TPB Company or any of their Affiliates has any obligation to gross-up or indemnify any Person with respect to any Taxes imposed under Section 409A of the IRC.
(i) Neither Each TPB Benefit Plan that is a “group health plan” (within the Company nor any meaning of Section 5000(b)(1) of the IRC) has been operated in compliance in all material respects with all Laws applicable to such plan (including the Patient Protection and Affordable Care Act of 2010), its Subsidiaries maintains or has maintained any terms, and with the group health plan continuation coverage requirements of Section 4980B of the IRC and Sections 601 through 608 of ERISA (“COBRA Coverage”), Section 4980D of the IRC and Sections 701 through 707 of ERISA, Title XXII of the Public Health Service Act and the provisions of the Social Security Act, to the extent that such requirements are applicable. No TPB Benefit Plan or Benefit Arrangement covering written or oral agreement exists that obligates the TPB Companies or any current ERISA Affiliate to provide health care coverage, medical, surgical, hospitalization, death or similar benefits (whether or not insured) to any employee, former employee or member of the TPB Board or any ERISA Affiliate following such employee’s, former employee’s or director’s termination of employment or service to TPB, including, but not limited to, retiree medical, health or life benefits, other than as required under COBRA Coverage or other similar applicable Law.
(ii) No TPB Benefit Plan, excluding any short-term disability, non-qualified deferred compensation, vacation, bonus, fringe benefit or health flexible spending account plan or program, is self-insured or funded through the general Assets of a TPB Company or any of its Subsidiaries an ERISA Affiliate. No TPB Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA is funded by a trust or was is subject to the Laws of any jurisdiction outside Section 419 or 419A of the United StatesIRC.
Appears in 2 contracts
Samples: Stock Purchase and Affiliate Merger Agreement, Stock Purchase and Affiliate Merger Agreement (First Us Bancshares Inc)
Employee Benefit Plans. (a) Section 3.10(a3.12(a) of the Company Disclosure Schedule contains Letter sets forth a correct and complete list of: all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and all material other employee benefit plans, programs, agreements, policies, arrangements or payroll practices, including bonus plans, employment, consulting or other compensation agreements, collective bargaining agreements, Company Benefit Stock Plans, individual stock option agreements to which the Company is a party granting stock options to acquire Company Common Stock that have not been granted under a Company Stock Plan, incentive and other equity or equity-based compensation, or deferred compensation arrangements, change in control, termination or severance plans or arrangements, stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and scholarship plans and programs maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributed or is obligated to contribute thereunder for current or former employees of the Company or any of its Subsidiaries (the “Employees”) (collectively, the “Company Plans”).
(b) Correct and complete copies of the following documents, with respect to each of the Company Plans and material Company Benefit Arrangements. The Company has (other than a Multiemployer Plan), have been delivered or made available to Parent complete and correct copies of by the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementCompany, to the extent applicable: (i) any plans, all plan documents, amendments and attachments thereto and related trust documents, insurance contractscontracts or other funding arrangements, service provider agreements and amendments thereto; (ii) written descriptions of the most recent Forms 5500 and all material non-written agreements relating to any such plan or arrangementschedules thereto and the most recent actuarial report, if any; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reportsmost recent IRS determination letter; (iv) nondiscrimination testing results for the last three (3) yearssummary plan descriptions; and (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesemployees generally.
(bc) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission The Company Plans have been maintained in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its their terms and with all provisions of ERISA, the Code and other applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company (or any of its Subsidiaries Subsidiaries) nor any “party in interest” or “disqualified person” with respect to the Company Plans has been properly classified for purposes engaged in a non-exempt “prohibited transaction” within the meaning of participation and benefit accrual under each Company Benefit Plan and Company Benefit ArrangementSection 4975 of the Code or Section 406 of ERISA, except as could individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. No fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Plan, except as individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(d) To the Company’s Knowledge, the Company Plans intended to qualify under Section 401 of the Code are so qualified and any trusts intended to be exempt from Federal income taxation under Section 501 of the Code are so exempt, except as individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(e) None of the Company, its Subsidiaries or any trade or business (whether or not incorporated) that is treated as a single employer, with any of them under Section 414(b), (c), (m) or (o) of the Code has any current or contingent liability with respect to (i) a plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code or (ii) any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA). Each Company Plan that is intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of Subtitle A of the Code meets such requirements, with such exceptions that individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(f) All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Company Plans (including workers compensation) or by Law (without regard to any waivers granted under Section 412 of the Code), to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension).
(g) To the Company’s Knowledge, there are no pending actions, claims or lawsuits that have been asserted or instituted against the Company Plans, the assets of any of the trusts under the Company Plans or the sponsor or administrator of any of the Company Plans, or against any fiduciary of the Company Plans with respect to the operation of any of the Company Plans (other than routine benefit claims), nor does the Company have any Knowledge of facts that could form the basis for any such action, claim or lawsuit, other than such actions, claims or lawsuits that individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(h) None of the Company Plans provides for post-employment life or health insurance, benefits or coverage for any participant or any beneficiary of a participant, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or applicable state law, and at the expense of the participant or the participant’s beneficiary. Each of the Company and any ERISA Affiliate which maintains a “group health plan” within the meaning Section 5000(b)(1) of the Code has complied with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder, except where the failure to comply individually or in the aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(i) Except as set forth in Section 3.12(i) of the Company Disclosure Letter (to the extent applicable, in each case broken down as to each item, and the individual and amount involved), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, including the Company Stockholder Approval or the Merger, will (i) result in any payment becoming due to any Employee, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment or vesting of any such benefits under any Company Plan or (iv) result in any obligation to fund any trust or other arrangement with respect to compensation or benefits under a Company Plan. Except as set forth in Section 3.12(i) of the Company Disclosure Letter, since January 1, 2005, the Company, including the Company Board, any committee thereof and any officer of the Company, has not taken any action to increase the compensation or benefits payable after the date hereof to any officer having the title of Senior Vice President or higher of the Company.
(j) Neither the Company nor any of its Subsidiaries hashas a contract, within six plan or commitment, whether legally binding or not, to create any additional Company Plan or to modify any existing Company Plan, except as required by applicable Law or tax qualification requirement.
(6k) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon Any individual who performs services for the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims through a contract with an organization other than such individual) and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of who is not treated as an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that for Federal income tax purposes by the Company or any of its Subsidiaries is not an employee for such purposes, except as individually or was subject in the aggregate, together with any breach or breaches of Section 3.12(c) hereof (without regard to any materiality or Company Material Adverse Effect qualifiers therein), has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(l) Except as set forth in Section 3.12(l) of the Laws Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to any contract, agreement or other arrangement providing for the payment of any jurisdiction outside amount which would not be deductible by reason of Section 162(m) or Section 280G of the United StatesCode.
Appears in 2 contracts
Samples: Merger Agreement (Mgi Pharma Inc), Merger Agreement (Guilford Pharmaceuticals Inc)
Employee Benefit Plans. Except as set forth in Section 4.18 of the Company Disclosure Schedule:
(a) Section 3.10(a4.18(a) of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of all ERISA, each material employment, compensation, severance or similar contract, plan, arrangement or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other material forms of incentive or deferred compensation, vacation benefits, health or medical benefits, employee assistance programs, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) which is maintained, administered, contributed to or required to be contributed to by the Company Benefit Plans or any Affiliate and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies covers any current or former employee, officer, director or independent contractor of the following documents Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has or may have any liability, including by reason of having an ERISA Affiliate. Such plans are referred to collectively herein as the “Employee Plans.”
(b) With respect to each material Company Benefit Plan and material Company Benefit ArrangementEmployee Plan, to the extent applicable: , the Company has furnished or made available to Parent (i) all plan documentsdocuments constituting the plan, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; the trust agreement, (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and any summaries of material modifications thereto; modification, (viiv) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority three most recent annual reports on or after January 1, 2014; (vii) required notices or other written communications to employees; Form 5500 and (viiiv) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is with respect to any plan intended to be qualified within the subject meaning of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections Section 401(a) and 501(a), respectively, of the Code, and, to the knowledge of most recent determination letter.
(c) Neither the Company, no act any of its Subsidiaries, nor any ERISA Affiliate of such entity nor any predecessor thereof sponsors, maintains, contributes to, or omission has any liability with respect to, or has in the operation past sponsored, maintained, contributed to, or had any liability with respect to, any Employee Plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, any multiemployer plan as defined in Section 3(37) of ERISA, any multiple employer plan as defined in Section 413 of the Code, any multiple employer welfare arrangement as defined in Section 3(40) of ERISA, or any funded welfare plan as defined in Section 419 of the Code.
(d) Each Employee Plan that is a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated in compliance with Section 409A of the Code and the regulations promulgated thereunder, and no such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 resulted or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could would reasonably be expected to have result in a Material Adverse Effectparticipant incurring income acceleration or excise Taxes under Section 409A of the Code. Neither the Company nor any of its Subsidiaries is liable has any obligation for any penalty Taxes imposed pursuant to Section 409A of the Code.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or excise taxes assessable under ACAhas pending or has time remaining in which to file, an application for such determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter would be likely to be revoked or not be reissued. Each individual classified Except as an would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries, taken as a whole, each Employee Plan has been maintained, funded and administered in compliance with its terms and with the requirements prescribed by Applicable Law, and there has been no prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code with respect to any Employee Plan. No fiduciary to any Employee Plan has any liability for breach of fiduciary duty or other failure to act or comply in connection with the administration or investment of any of the assets of any Employee Plan.
(f) The consummation of the transactions contemplated by this Agreement will not (either alone or together with any other event) entitle any employee, officer, director or independent contractor or other non-employee classification by of the Company or any of its Subsidiaries has been properly classified for purposes to severance pay or accelerate the time of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored payment or been required to contribute to any Pension Plan. There are no current vesting or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide trigger any payment or funding (through a grantor trust or otherwise) of compensation that would constitute an “excess parachute payment” under Section 280G of or benefits under, increase the Code. No Company Benefit Plan amount payable or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or trigger any other applicable Lawsmaterial obligation pursuant to, any Employee Plan.
(g) Neither the Company nor any of its Subsidiaries hashas any material liability in respect of post-retirement health, within six (6) years prior to medical or life insurance benefits for retired, former or current employees, officers, directors or independent contractors of the date Company or its Subsidiaries except as required by Section 4980B of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) the Code and Part 6 of Title I of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have There has been documented and administered in accordance with Section 409A of the Code in all material respects.
no amendment to, written interpretation or announcement (iwhether or not written) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of by the Company or any of its Subsidiaries that ERISA Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 31, 2010, other than in the ordinary course consistent with past practice.
(i) All contributions due under each Employee Plan have been paid when due or properly accrued on the Company’s consolidated financial statements.
(j) There is no action, suit, investigation, audit or was proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority.
(k) No Employee Plan is subject to the Laws laws of any jurisdiction outside of the United StatesStates of America.
Appears in 2 contracts
Samples: Merger Agreement (Conmed Healthcare Management, Inc.), Merger Agreement (Conmed Healthcare Management, Inc.)
Employee Benefit Plans. (a) All benefit and compensation plans, contracts, programs, policies or arrangements maintained, sponsored or contributed to by Salisbury, Salisbury Bank, or any of their Subsidiaries, or with respect to which Salisbury, Salisbury Bank or any of their Subsidiaries has any liability, whether actual or contingent, covering current or former employees of Salisbury, Salisbury Bank, or any of their Subsidiaries (collectively, the “Salisbury Employees”), current or former directors of Salisbury, Salisbury Bank or any of their Subsidiaries, any other current or former individual service providers of Salisbury, Salisbury Bank, or any of their Subsidiaries, or the dependents or beneficiaries of any of the foregoing, including, but not limited to, “employee benefit plans” within the meaning of Section 3.10(a3(3) of ERISA, and deferred compensation, stock option, stock purchase, stock appreciation rights, stock based compensation, supplemental retirement, employment, consulting, termination, severance, change in control, separation, retention, incentive, bonus, fringe benefit, health, medical, dental, vision, disability, accident, life insurance, welfare benefit, cafeteria, flexible spending, vacation, paid time off or perquisite plans, contracts, programs, policies or arrangements, in each case, whether written or unwritten (the Company “Salisbury Benefit Plans”), are identified in Salisbury Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements3.16(a). The Company Salisbury or Salisbury Bank has delivered or made available to Parent complete and correct copies NBT a copy of each Salisbury Benefit Plan (or a written description of the following documents material provisions of each unwritten Salisbury Benefit Plan) and, with respect to each material Company Benefit Plan and material Company Benefit Arrangementthereto, to the extent as applicable: , (i) all plan documentsamendments, currently effective trust documents, (or other funding vehicle) agreements and insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description (and all summaries of material modifications thereto; ), (iii) the most recent actuarial report (or other financial statement relating to such Salisbury Benefit Plan), (iv) the three (3) most recently filed Forms 5500 (with all schedules and attachments), (v) the most recent determination (or, if applicable, opinion or advisory) letter from the IRS and (vi) all material notices correspondence to or other communications received from the IRS, Department of Labor, or any other a Governmental Authority on or after January 1, 2014; during the past three (vii3) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesyears.
(b) Each Qualified Salisbury Benefit Plan has been maintained and administered in material compliance with its terms and applicable law, including, without limitation, ERISA and the Code. Each Salisbury Benefit Plan which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Salisbury Pension Plan”) and which is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter(or, if applicable, opinion or advisory) letter from the IRS, and to the Knowledge of Salisbury, there are no circumstances likely to result in revocation of any such favorable determination (or, if applicable, opinion or advisory) letter or the loss of the qualification of such Salisbury Pension Plan under Section 401(a) of the Code. There is no pending or, to Xxxxxxxxx’x Knowledge, threatened claim, action, suit, litigation, proceeding, arbitration, mediation, investigation or audit relating to the Salisbury Benefit Plans (other than routine claims for benefits in the normal course). Neither Salisbury, Salisbury Bank nor any of their Subsidiaries has engaged in any transaction with respect to any Salisbury Benefit Plan that, assuming the taxable period of such transaction expired as of the date hereof, could subject Salisbury, Salisbury Bank or any of their Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA.
(c) Neither Salisbury, Salisbury Bank, any of their Subsidiaries nor any entity which is considered to be one employer with Salisbury, Salisbury Bank or any of their Subsidiaries under Section 4001 of ERISA or Section 414 of the Code maintains, sponsors, participates in or contributes to (or has any obligation to contribute to), or is the subject of a favorable advisory has ever maintained, sponsored, participated in or opinion letter as contributed to its qualification, issued by the Internal Revenue Service (the “IRS”) or had any obligation to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(acontribute to), respectivelyor has or is reasonably expected to have any direct or indirect liability with respect to any plan subject to Title IV of ERISA, including any “multiemployer plan,” as defined in Section 3(37) of ERISA. None of the Salisbury Benefit Plans is a “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code) or a “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA).
(d) All contributions, payments, premiums and other obligations required to be made under the terms of any Salisbury Benefit Plan or an agreement with any Salisbury Employee have been timely made or have been accurately reflected on the financial statements of Salisbury.
(e) Other than as identified in Salisbury Disclosure Schedule 3.16(e), neither Salisbury, Salisbury Bank nor any of their Subsidiaries has any obligations to provide or fund retiree health or life insurance benefits, other than coverage as may be required under Section 4980B of the Code or Part 6 of Title I of ERISA, or under the continuation of coverage provisions of the applicable laws of any state or locality. Salisbury or Salisbury Bank may amend or terminate any Salisbury Benefit Plan identified in Salisbury Disclosure Schedule 3.16(e) at any time without incurring any liability thereunder.
(f) Other than as set forth in Salisbury Disclosure Schedule 3.16(f), the execution of this Agreement, shareholder approval of this Agreement or consummation of any of the transactions contemplated by this Agreement (either alone or together with any other event) will not (i) entitle any Salisbury Employees to severance pay or any increase in severance pay upon any termination of employment after the date hereof, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Salisbury Benefit Plans, (iii) result in any breach or violation of, or a default under, any of the Salisbury Benefit Plans, (iv) result in any payment that would be a “parachute payment” to a “disqualified individual” as those terms are defined in Section 280G of the Code, andwithout regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future, (v) limit or restrict the right of Salisbury or Salisbury Bank, or after the consummation of the transactions contemplated hereby, NBT, the Surviving Corporation or the Surviving Bank, to the knowledge merge, amend, or terminate any of the CompanySalisbury Benefit Plans, no act or omission (vi) result in payments that would not be deductible under Section 162(m) of the Code.
(g) Other than as set forth in Salisbury Disclosure Schedule 3.16(g), neither Salisbury nor Salisbury Bank has any obligation to compensate any current or former employee, officer, director or other service provider of Salisbury, Salisbury Bank or any of their Subsidiaries for excise Taxes paid pursuant to Section 4999 of the Code. Salisbury Disclosure Schedule 3.16(g) contains a schedule showing the present value of the monetary amounts payable as of the date specified in such schedule, whether individually or in the operation aggregate (including good faith estimates of all amounts not subject to precise quantification as of the date of this Agreement), under any employment, change-in-control, severance or similar contract, plan or arrangement with or which covers any present or former director, officer or employee of Salisbury or Salisbury Bank who may be entitled to any such amount and identifying the types and estimated amounts of the in-kind benefits due under any Salisbury Benefit Plans (other than a plan has occurred that could adversely affect its qualified status. Each Company under Section 401(a) of the Code) for each such person, specifying the assumptions in such schedule.
(h) Salisbury, Salisbury Bank, each of their Subsidiaries and each Salisbury Benefit Plan and each Company Benefit Arrangement has been administered are in all material respects in accordance compliance with its the applicable terms and with all applicable Laws, including ERISA, the Code, of the Patient Protection and Affordable Care Act (“ACA”) of 2010, as amended by the Health Care and Education Reconciliation Act of 2010, and the Health Insurance Portability guidance and Accountability Act. With respect to regulations issued under each Company Benefit Plan and Company Benefit Arrangement, of the foregoing.
(i) no non-exempt transactions prohibited by Each Salisbury Benefit Plan that is a “nonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) and any deferral elections thereunder are in documentary compliance with and have been maintained and operated in compliance with its terms and the operational and documentary requirements of Section 409A of the Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effectthe regulations thereunder. Neither the Company Salisbury, Salisbury Bank nor any of its their Subsidiaries is liable for has any penalty obligation to gross up, indemnify or excise taxes assessable under ACA. Each individual classified as an independent contractor otherwise reimburse any current or other non-former officer, director, employee classification by the Company or consultant of Salisbury, Salisbury Bank or any of its their Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected any Taxes incurred by such individual pursuant to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Salisbury Bancorp, Inc.), Merger Agreement (NBT Bancorp Inc)
Employee Benefit Plans. (a) Section 3.10(a4.13(a) of the Company Seller Disclosure Schedule contains a correct Letter sets forth an accurate and complete list of all Plans. None of the Company Entities has any plan or commitment to, or has represented that it will, adopt or enter into any additional Plans or to materially amend or terminate any existing Plan. Each Plan has been established, maintained, operated, funded, and administered in accordance with its terms in all material Company Benefit respects and in compliance in all material respects with the requirements of the applicable Law.
(b) With respect to each Plan (and each related funding vehicle), all contributions (including employer contributions and employee salary reduction contributions, premiums, distributions, payments, distributions, reimbursements, and accruals) that are due have been timely made or properly accrued in accordance with the terms of such Plan and applicable Law or, if not yet due, have been properly accrued for in accordance with any applicable accounting requirements. All wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of any Service Providers have been timely paid or made in full or, to the extent not yet due, properly accrued in accordance with any applicable accounting requirements, the terms of the Plan and all applicable Law. There is no current, pending or, to the Seller’s Knowledge, threatened Actions (except for routine claims for benefits) relating to any Plan. The obligations or insured contingencies under all Plans that provide health, welfare or similar insurance are fully insured by bona fide third-party insurers and material Company Benefit Arrangementsall applicable premiums are paid up to date. No Plan is maintained through a human resources and benefits outsourcing entity, professional employer organization, or other similar vendor or provider.
(c) The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementPurchaser, to the extent applicable, complete, current and correct copies of: (i) all plan documentsdocuments embodying or governing each Plan and each related funding agreement and insurance policy, trust documentsif any (or a written description of the material terms and conditions of each Plan that is unwritten), insurance contracts, service provider agreements and any amendments thereto; , (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description (and summaries summary of material modifications thereto; (vimodifications) all material notices or other communications received from the IRS, Department of Labor, or and any other Governmental Authority on notice or after January 1, 2014; (vii) required notices description provided to or other written communications to agreed with employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e4.13(d) of the Seller Disclosure Letter, neither the execution, delivery and performance of this Agreement by the Company Disclosure Schedule, no nor the consummation by the Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions transactions contemplated hereby and thereby will (alone or upon relatedin combination with any other event, concurrentincluding a termination or restructure of employment on or following the Closing), directly or subsequent employment terminationindirectly, would result in (i) increasepayment or provision of any additional, accelerate or vest an increase in the amount of, compensation, share incentives or other benefits, an acceleration of the amount of any compensation or benefitbenefits, or entitlement to any severance or similar benefit or change in employment status or responsibilities, payable to or in respect of any Service Provider, (ii) require severanceany acceleration in the vesting or the timing of payment of any outstanding options, termination compensation or retention payments benefits held by or payable to or in respect of any Service Provider, (iii) forgive any indebtedness. No Company Benefit Plan increased, enhanced or Company Benefit Arrangement contains any provision or is subject accelerated funding obligation with respect to any Law that would promise Plan, (iv) any restriction on the ability of any Company Entity to amend, modify or provide terminate any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrentPlan, or subsequent employment termination, would require or provide (v) any payment or compensation that would constitute an “excess parachute payment” under Section 280G forgiveness of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any indebtedness of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company employee, officer, director or any of its Subsidiaries that is or was subject to the Laws consultant of any jurisdiction outside of the United StatesCompany Entity.
Appears in 2 contracts
Samples: Business Combination Agreement (Goal Acquisitions Corp.), Business Combination Agreement (Goal Acquisitions Corp.)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule contains a correct and complete list of lists all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies compensation or employee benefit plans, programs, policies, agreements, arrangements, or other “employee benefit plans” (within the meaning of Section 3(3) of the following documents with respect Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as well as all other arrangements not subject to each material ERISA, providing cash- or equity-based incentives, health, medical, dental, disability, accident or life insurance benefits or vacation, severance, retention, change in control, retirement, pension or savings benefits, that are sponsored, maintained or contributed to by the Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions or any of all material non-written agreements relating to any such plan its Subsidiaries or arrangement; (iii) Form 5500 filings are for the last three (3) yearsbenefit of current or former employees or directors of the Company, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, its Subsidiaries or any other Governmental Authority on entity which would be aggregated with the Company and treated as the same employer under Code Section 414(b) or after January 1(c) (an “ERISA Affiliate”) (the “Company Benefit Plans”) or under which the Company, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesany of its Subsidiaries any ERISA Affiliate may have liability.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been maintained, operated and administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, ERISA and the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Each Company Benefit Plan and Company Benefit Arrangementintended to be “qualified” within the meaning of Section 401(a) of the Code is the subject of a favorable determination letter from the Internal Revenue Service as to its qualification or, (i) if no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) such determination has been made, an application for such determination is pending with the Internal Revenue Service and, to the Company’s knowledge, no act or omission event has occurred that could would reasonably be expected to have result in the disqualification of such Company Benefit Plan.
(c) No Employee Plan constitutes (i) a Material Adverse Effect“multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of ERISA, (ii) a “defined benefit plan,” as defined in Section 3(35), (iii) any other plan subject to Title IV of ERISA. Neither the Company nor any No liability under Title IV of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification ERISA has been incurred by the Company or any of its Subsidiaries that has not been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangementsatisfied in full when due, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending orand, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect for benefits, no condition exists that could reasonably be expected to qualified domestic relations orders) relating result in a material liability to the Company or its Subsidiaries under Title IV of ERISA. Full payment has been made of all amounts which the Company or any ERISA Affiliate is required to have paid as contributions to or benefits under any Company Benefit Plans or Company Benefit Arrangements (including Plan as of the end of the most recent plan year thereof and there are no unfunded obligations under any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement)that have not been disclosed in writing prior to the Closing. No Company Benefit Plan or Company Benefit Arrangement has received notice All contributions and contribution obligations have been reflected on the most recent financial statements of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Company.
(ed) Except as set forth on in Section 3.10(e3.10(d) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result the consummation of the Transactions or upon related, concurrent, or subsequent employment termination, would will not (i) increaseentitle any current or former employee, accelerate consultant, officer or vest director of the Company or any of its Subsidiaries to severance, retention or change in control pay, unemployment compensation or benefit, any other payment or (ii) require severanceaccelerate the time of payment or vesting, termination or retention payments increase the amount, of compensation due any such current or former employee, consultant, officer or director.
(iiie) forgive There are no material pending or, to the Company’s knowledge, threatened claims against, by or on behalf of, or any indebtedness. No Liens filed against or with respect to, any of the Company Benefit Plan Plans or otherwise involving any Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the CodePlan.
(f) Except as set forth on in Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute is a party to any agreement, contract or arrangement that could result, separately or in the aggregate, in the payment of (a) any “multiple employer welfare arrangementexcess parachute payments” as defined in within the meaning of Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A 280G of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.Code, or
Appears in 2 contracts
Samples: Merger Agreement (Vertro, Inc.), Merger Agreement (Vertro, Inc.)
Employee Benefit Plans. (a) Section 3.10(a3.16(a) of to the Company Disclosure Schedule contains sets forth a correct true and complete list of each “employee benefit plan” (within the meaning of Section 3(3) of ERISA, including, all material employment, compensation, individual consulting, bonus, incentive, equity or equity-based compensation, deferred compensation, vacation, stock purchase, stock option, severance, change of control, retention, collective bargaining, employee loan, retirement, salary continuation, health or life insurance, fringe benefit and all other material employee benefit plans, programs, policies, agreements or arrangements, whether or not subject to ERISA, in each case that are sponsored, maintained or contributed to by the Company Benefit Plans and or any of its Subsidiaries for the benefit of current or former employees, directors or individual independent contractors of the Company or its Subsidiaries or to which the Company or any of its Subsidiaries has any material liability (contingent or otherwise) (collectively, the “Company Benefit Arrangements. The Plans”).
(b) With respect to each Company Plan, the Company has provided or made available to Parent a true, correct and complete and correct copies copy of the following documents with respect to (in each material case where applicable given the nature of the Company Benefit Plan and material Company Benefit Arrangement, to Plan) as of the extent applicabledate of this Agreement: (i) all plan documentsdocuments and amendments thereto, trust documents, insurance contracts, service provider agreements or other funding vehicles and amendments thereto; (ii) the most recent annual report (Form 5500 Series) and accompanying schedule; (iii) the current summary plan description and any material modifications thereto; (iv) the most recent annual financial report; (v) the most recent actuarial report; (vi) the most recent determination, opinion or advisory letter from the Internal Revenue Service and (vii) written descriptions of all material non-written agreements relating Company Plans. Except as specifically provided in the foregoing documents delivered or made available to Parent, as of the date of this Agreement, there are no material amendments to any such plan Company Plan that have been adopted or arrangement; (iii) Form 5500 filings for approved nor has the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, Company or any other Governmental Authority on of its Subsidiaries undertaken to make any such amendments or after January 1, 2014; (vii) required notices to adopt or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesapprove any material new Company Plan.
(bc) Each Qualified Company Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code has received a favorable determination letterdetermination, opinion, or is the subject of a favorable advisory or opinion letter as with respect to its qualification.
(d) All contributions required to be made under any of the Company Plans to any funds or trusts established thereunder or in connection therewith and all premiums due or payable with respect to insurance policies funding any Company Plan, issued by before the Internal Revenue Service date of this Agreement, have been made or paid in full in all material respects.
(e) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, each Company Plan has been established, maintained and operated in compliance with its terms and all applicable provisions of ERISA, the Code and all Laws applicable to such Company Plan. There is not now, and there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the posting of security with respect to a Company Plan or the imposition of any Lien on the assets of the Company or any of its Subsidiaries under ERISA, the Code or applicable Law, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. No Company Plan is (i) a “IRS”multiemployer plan” (as defined in Section 3(37) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(aof ERISA), respectively, (ii) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA) or (iii) subject to Section 412 of the Code, andSection 302 of ERISA or Title IV of ERISA. Neither the Company nor any of its ERISA Affiliates maintains, sponsors, contributes to, is obligated to contribute to, or has in the knowledge last six years maintained, sponsored, contributed or been obligated to contribute to any plans subject to Title IV of ERISA, Section 412 of the CompanyCode or Section 302 of ERISA. No Company Plan provides for postemployment life or health insurance, no act benefits or omission in coverage for any participant or any beneficiary of a participant, except as may be required under Part 6 of Subtitle B of Title 1 of ERISA or similar state Law and at the operation expense of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and the participant or the participant’s beneficiary.
(f) Since January 1, 2005, each Company Benefit Arrangement Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code, has been administered operated in compliance in all material respects in accordance with its terms and with all applicable Laws, including ERISA, Section 409A of the Code.
(g) Except as contemplated by this Agreement, neither the Patient Protection execution and Affordable Care Act (“ACA”) and delivery of this Agreement nor the Health Insurance Portability and Accountability Actconsummation of the Transactions, either alone or in combination with another event, will result in, cause the accelerated vesting, funding of any amounts to a rabbi trust, or increase the amount or value of, any payment or benefit to any current or former employee, officer, director or individual independent contractor of the Company or any of its Subsidiaries. With respect No amount paid or payable by the Company or any of its Subsidiaries in connection with the Transactions is reasonably likely to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited result in any payment or benefit which would not be deductible by Code reason of Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect280G of the Code. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by a party to, nor is the Company or any of its Subsidiaries has been properly classified otherwise obligated under, any plan, policy, agreement or arrangement that provides for purposes the gross-up or reimbursement of participation and benefit accrual Taxes imposed under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse EffectSection 409A or 4999 of the Code.
(ch) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current pending or contingent Liabilities that could reasonably be expected to be imposed upon the Knowledge of the Company threatened claims (other than claims for benefits in the ordinary course consistent with past practice), lawsuits or arbitrations which have been asserted or instituted against the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans which would result in any material liability of the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge United States Department of Treasury, the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the United States Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrentmultiemployer plan, or subsequent employment termination, would (i) increase, accelerate any current or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No former participants of such Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respectsPlans.
(i) Neither the Company nor any of its Subsidiaries maintains is a party to, or bound by, or as of the date of this Agreement negotiating, any collective bargaining agreement, labor union contract, or trade union agreement. As of the date of this Agreement, there is no material labor strike, slowdown, work stoppage or lockout pending or, to the Knowledge of the Company, threatened against the Company, and the Company has maintained not experienced any Benefit Plan material labor dispute since January 1, 2012. To the Knowledge of the Company, as of the date of this Agreement there are no material organizational efforts with respect to the formation of a collective bargaining unit presently being made or Benefit Arrangement covering threatened involving employees of the Company or any current or former employee of its Subsidiaries, and there have not been any such material organizational efforts since January 1, 2012.
(j) Since January 1, 2012, none of the Company or any of its Subsidiaries that is has breached or was subject violated any (i) applicable Law respecting employment and employment practices, terms and conditions of employment and wages and hours, including any such law respecting employment discrimination, employee classification, workers’ compensation, family and medical leave, the Immigration Reform and Control Act and occupational safety and health requirements, or (ii) employment agreement or other agreement establishing terms of employment, except, in the case of clauses (i) and (ii), where such breach or violation, individually or in the aggregate, would not reasonably be expected to result in material liability to the Laws Company or any of any jurisdiction outside its Subsidiaries; and no material claims, controversies, investigations, audits or suits are pending or, to the Knowledge of the United StatesCompany, threatened in writing, with respect to such laws or agreements, either by private individuals or by Governmental Authorities.
(k) The Company has made available to Parent a list of all employees of the Company and its Subsidiaries by employee number and each such employee’s initial date of employment, position or title and annual base salary or hourly wage rate.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Insite Vision Inc), Merger Agreement (Insite Vision Inc)
Employee Benefit Plans. (a) Section 3.10(a3.12(a) of the Company Disclosure Schedule contains Letter sets forth a correct and complete list of: all "employee benefit plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all material other employee benefit plans, programs, agreements, policies, arrangements or payroll practices, including bonus plans, employment, consulting or other compensation agreements, collective bargaining agreements, Company Benefit Stock Plans, individual stock option agreements to which the Company is a party granting stock options to acquire Company Common Stock that have not been granted under a Company Stock Plan, incentive and other equity or equity-based compensation, or deferred compensation arrangements, change in control, termination or severance plans or arrangements, stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and scholarship plans and programs maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributed or is obligated to contribute thereunder for current or former employees of the Company or any of its Subsidiaries (the "Employees") or directors or former directors thereof (collectively, the "Company Plans").
(b) Correct and complete copies of the following documents, with respect to each of the Company Plans and material Company Benefit Arrangements. The Company has (other than a Multiemployer Plan), have prior to the date hereof, been delivered or made available to Parent complete and correct copies of by the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementCompany, to the extent applicable: (i) any plans, all plan documents, amendments and attachments thereto and related trust documents, insurance contractscontracts or other funding arrangements, service provider agreements and amendments thereto; (ii) written descriptions of the most recent Forms 5500 and all material non-written agreements relating to any such plan or arrangementschedules thereto and the most recent actuarial report, if any; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reportsmost recent IRS determination letter; (iv) nondiscrimination testing results for the last three (3) yearssummary plan descriptions; and (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesemployees generally.
(bc) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each The Company Benefit Plan and each Company Benefit Arrangement has Plans have been administered maintained in all material respects in accordance with its their terms and with all provisions of ERISA, the Code and other applicable Laws, including ERISA, and neither the Code, the Patient Protection and Affordable Care Act Company (“ACA”or any of its Subsidiaries) and the Health Insurance Portability and Accountability Act. With nor any "party in interest" or "disqualified person" with respect to each the Company Benefit Plan and Company Benefit Arrangement, (i) no Plans has engaged in a non-exempt transactions "prohibited by Code transaction" within the meaning of Section 4975 of the Code or ERISA Section 406 have occurred and (ii) no act or omission has occurred of ERISA that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by would cause the Company or any of its Subsidiaries to incur any liability for any material amount. No fiduciary has been properly classified any liability for purposes breach of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company fiduciary duty or any of its Subsidiaries other failure to act or comply with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to applicable Law in connection with the knowledge administration or investment of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to assets of any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Plan.
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (American Retirement Corp), Merger Agreement (Brookdale Senior Living Inc.)
Employee Benefit Plans. (a) Section 3.10(a4.18(a) of the Company Disclosure Schedule contains a correct and complete list, as of the date of this Agreement, of each material Employee Plan sponsored or maintained in those jurisdictions set forth on Section 4.18(a)(i) of the Company Disclosure Schedule and as soon as practicable after the date of this Agreement, but no later than sixty (60) days thereafter, a correct and complete list of all each material Employee Plan sponsored or maintained in any jurisdiction other than those set forth in Section 4.18(a)(i) of the Company Benefit Plans Disclosure Schedule shall be set forth on Section 4.18(a)(ii) of the Company Disclosure Schedule. “Employee Plan” means each “employee benefit plan,” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), each employment, severance or similar contract, plan, practice, arrangement or policy and material each other plan, agreement, program, practice or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) which is maintained, administered or contributed to, or required to be maintained, administered or contributed to, by the Company Benefit Arrangementsor any ERISA Affiliate and covers or is for the benefit of any employee or former employee or other individual service provider of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability, in each case, other than any plan, program or arrangement maintained by a Governmental Authority to which the Company or any of its Subsidiaries is required to contribute pursuant to Applicable Law. The Company has made available to Parent complete Parent, as of the date hereof for Employee Plans sponsored or maintained in the United States, and as soon as practicable after the date of this Agreement, but no later than sixty (60) days thereafter, for Employee Plans sponsored or maintained outside the United States, true and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementcomplete copies, to the extent applicable: , of (i) all plan documentsmaterial Employee Plans (and, if applicable, all related trust documentsor funding agreements or insurance policies) and all material amendments thereto (in the case of unwritten Employee Plans, insurance contractswritten summaries of the terms thereof), service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; the most recent annual report (iii) Form 5500 filings for the last three (3) years, including all schedules thereto) and tax return (Form 990), annual reportif any, financial statements and prepared in connection with any related actuarial reports; material Employee Plan or trust provided pursuant to clause (iv) nondiscrimination testing results for the last three i), (3) years; (viii) the most recent summary plan description and summaries of material modifications thereto; thereto with respect to any material Employee Plan provided pursuant to clause (i), (iv) the most recent financial statements and actuarial reports for each material Employee Plan, (v) the most recent IRS determination letter or opinion letter upon which the Company may rely regarding its qualified status under the Code for each material Employee Plan, and (vi) all material notices or other communications non-routine correspondence received by the Company from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit material Employee Plan and Company Benefit Arrangement, in the last three (i3) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectyears.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Hewlett Packard Enterprise Co), Merger Agreement (Juniper Networks Inc)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Parent Disclosure Schedule contains sets forth a correct true and complete list of each “employee benefit plan” as defined in Section 3(3) of ERISA and any other plan, policy, program, practice, agreement, understanding or arrangement (whether written or oral) providing compensation or other benefits to any current director, officer, employee or consultant (or to any dependent or beneficiary thereof of Parent or any ERISA Affiliate), which are now, or were within the past 2 years, maintained, sponsored or contributed to by Parent or any ERISA Affiliate, or under which Parent or any ERISA Affiliate has any obligation or liability, whether actual or contingent, including, without limitation, all material Company incentive, bonus, deferred compensation, vacation, holiday, cafeteria, medical, disability, stock purchase, stock option, stock appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies, programs, practices or arrangements (each a “Parent Benefit Plans and material Company Plan”). Neither Parent, nor to the knowledge of Parent, or any other person or entity, has any express or implied commitment, whether legally enforceable or not, to establish, modify, change or terminate any Parent Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents Plan, other than with respect to a modification, change or termination required by ERISA or the Code. With respect to each material Company Parent Benefit Plan and material Company Benefit ArrangementPlan, (to the extent applicable: ) Parent has delivered or made available to the Company true, correct and complete copies of (iA) each Parent Benefit Plan (or, if not written a written summary of its material terms), including without limitation all plan documents, adoption agreements, trust documentsagreements, insurance contracts, service provider agreements contracts or other funding vehicles and all amendments thereto; , (iiB) written descriptions all summaries and summary plan descriptions, including any summary of all material non-written agreements modifications, (C) the annual reports (Form 5500 series) for the three most recent years filed or required to be filed with the DOL with respect to such Parent Benefit Plan (and, if any such annual report is a Form 5500R, the Form 5500C filed with respect to such Parent Benefit Plan), (D) the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Parent Benefit Plan and any pending request for such plan or arrangement; a determination letter and (iiiF) Form 5500 all filings for made with any Governmental Entity during the last three (3) most recent years, including all schedules thereto, annual report, financial statements and but not limited any related actuarial reports; (iv) nondiscrimination testing results for filings under the last three (3) years; (v) Voluntary Compliance Resolution or Closing Agreement Program or the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesLabor Delinquent Filer Program.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Parent Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, ERISA and the Code, and contributions required to be made under the Patient Protection and Affordable Care Act (“ACA”) and terms of any of Parent Benefit Plans as of the Health Insurance Portability and Accountability ActAgreement Date have been timely made or, if not yet due, have been properly reflected on the most recent consolidated balance sheet filed or incorporated by reference in Parent SEC Filings prior to the Agreement Date. With respect to each Company Parent Benefit Plan and Company Benefit ArrangementPlans, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission event has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending orand, to the knowledge of the CompanyParent, threatened Actions there exists no condition or set of circumstances in connection with which Parent could be subject to any material liability (other than for routine benefit claims and proceedings liabilities) under the terms of, or with respect to qualified domestic relations orders) relating to to, such Parent Benefit Plans, ERISA, the Code or any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable LawsLaw.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (RespireRx Pharmaceuticals Inc.), Merger Agreement (Cortex Pharmaceuticals Inc/De/)
Employee Benefit Plans. (a) Section 3.10(a3.14(a) of the Company Disclosure Schedule contains Letter sets forth a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents list, separately with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission country in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by which the Company or any of its Subsidiaries has been properly classified directors or employees, of: (i) all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and without regard to whether ERISA applies thereto), and (ii) all other employee benefit plans, agreements, policies or arrangements or payroll practices, including employment, consulting or other compensation agreements, collective bargaining agreements and all plans, agreements, policies or arrangements providing for purposes of participation and benefit accrual under bonus or other incentive compensation, equity or equity-based compensation, retirement, deferred compensation, change in control rights or benefits, termination or severance benefits, stock purchase, sick leave, vacation pay, salary continuation, hospitalization, medical insurance, life insurance, fringe benefits or other compensation, or educational assistance, in each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected case to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon which the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending ormaintains, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined participates in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan obligation or Benefit Arrangement covering any liability (contingent or otherwise) thereunder for current or former employee directors or employees of the Company or any of its Subsidiaries (the “Employees”), but excluding any government-sponsored plans required to be contributed to under the law of a non-U.S. jurisdiction (collectively, the “Company Plans”). Notwithstanding anything to the contrary herein, Section 3.14(a) of the Company Disclosure Letter need not list any employment agreement for an employee who is terminable at will if the agreement is substantially in the form previously made available to the Buyer.
(b) With respect to each Company Plan, the Company has made available to the Buyer a complete, current and correct copy of (i) such Company Plan including any amendments thereto and written interpretations thereof (other than routine responses to queries regarding benefit availability), (ii) the most recent annual report (Form 5500) and all schedules thereto filed with the IRS, (iii) the most recent actuarial report and IRS Determination Letter, if applicable, (iv) each trust agreement, group annuity contract and summary plan description, if any, relating to such Company Plan, (v) written communications to employees relating to the Company Plans, and (vi) written descriptions of all non-written agreements relating to the Company Plans.
(c) The Company Plans have been maintained, in all material respects, in accordance with their terms and with all applicable provisions of ERISA, the Code and other applicable Laws, and neither the Company nor any of its Subsidiaries nor any “party in interest” or “disqualified person” with respect to the Company Plans has engaged in a non-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA or in a violation of any other applicable Laws comparable to such provisions of the Code or ERISA that would reasonably be expected to result in material liability to the Company. To the Knowledge of the Company, no fiduciary has any material liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Plan.
(d) Each Company Plan that is intended to meet the requirements for country-specific tax-favored treatment under Subchapter B of Chapter 1 of Subtitle A of the Code or other applicable Laws meets such requirements, including (i) any Company Plans intended to qualify under Section 401 of the Code are so qualified and (ii) any trusts intended to be exempt from federal income taxation under Section 501 of the Code are so exempt. Nothing has occurred with respect to the operation of the Company Plans that would reasonably be expected to cause the loss of such tax-favored treatment, qualification or exemption, or the imposition of any material liability, penalty or tax under ERISA, the Code or other applicable Law.
(e) Neither the Company, any of the Company’s Subsidiaries nor any of their ERISA Affiliates has since January 1, 2000 (i) maintained or contributed to, or has any actual or contingent liability under, a Company Plan that is or was a defined benefit plan or that was ever subject to the Laws of any jurisdiction outside Section 412 of the United StatesCode or Title IV of ERISA or (ii) been obligated to contribute to, or has any material actual or contingent liability under, a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA). For purposes of this Agreement “ERISA Affiliate” means any entity which is a member of (A) a controlled group of corporations (as defined in Section 414(b) of the Code), (B) a group of trades or businesses under common control (as defined in Section 414(c) of the Code), or (C) an affiliated service group (as defined under Section 414(m) of the Code or the regulations under Section 414(o) of the Code), any of which includes or included the Company or a Subsidiary of the Buyer.
Appears in 2 contracts
Samples: Merger Agreement (Idx Systems Corp), Merger Agreement (General Electric Co)
Employee Benefit Plans. (a) Schedule 3.19 sets forth the number and names of the employees of Acquiree and the total 1996 compensation to each of the directors, officers and permanent employees of Acquiree.
(b) Except as disclosed on Schedule 3.19, Acquiree does not have any "employee benefit plans" (as such term is defined in Section 3.10(a3(3) of the Company Disclosure Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Schedule contains a correct 3.19 identifies all programs, including, without limitation, any pension plans, health and complete list welfare plans, life, disability, medical, dental or hospitalization insurance plans, sick-leave, vacation accrual or holiday plans, bonus, savings, profit-sharing or other similar benefit plans, deferred compensation, stock option, stock ownership and stock purchase plans covering employees or former employees of all material Company Benefit Plans and material Company Benefit ArrangementsAcquiree. The Company Except as disclosed on Schedule 3.19, each such plan or program has made available to Parent complete and correct copies of the following documents been operated substantially in accordance with respect to each material Company Benefit Plan and material Company Benefit Arrangementits terms and, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified ERISA and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a)Code. Acquiree does not sponsor or contribute to, respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan nor has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, it ever sponsored or been required to contribute to, any "multiemployer plan" as such term is defined in Section 3(37) of ERISA.
(c) Except as disclosed on Schedule 3.19, to the actual knowledge of Acquiree Shareholders, Acquiree does not have any Pension Plan. There are no current written contracts, or contingent Liabilities that could reasonably be expected to be imposed upon the Company oral contracts, including any employment, management, agency or any of its Subsidiaries consulting contracts, with respect to any Pension Plan maintained by an ERISA Affiliateof its current or retired employees.
(d) There are no pending orExcept as disclosed on Schedule 3.19, Acquiree is not a party to any collective bargaining agreement and, to the actual knowledge of the CompanyAcquiree Shareholders, threatened Actions (other than routine benefit claims and proceedings with respect there are no union organizational activities or efforts to qualified domestic relations orders) relating to any Company Benefit Plans effect a representation election pending or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement)threatened. No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).12
(e) Except as set forth disclosed on Schedule 3.19, Acquiree has complied in all material respects with all applicable laws relating to the employment of labor, including the provisions thereof relating to benefits required to be provided under Part VI of Subtitle B of Title I of ERISA or Section 3.10(e4980B(f) of the Company Disclosure ScheduleCode (collectively, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that"COBRA"), as a result wages, hours, working conditions, employee benefit plans and the payment of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Codewithholding and social security taxes.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Stock Purchase Agreement (RCM Technologies Inc), Stock Purchase Agreement (RCM Technologies Inc)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule contains lists (i) all employee benefit plans within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (whether or not such plan is subject to ERISA, and including any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a correct “Multiemployer Plan”)) and complete list all bonus, stock option, stock appreciation rights, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all employment, termination, severance or other Contracts, whether legally enforceable or not, to which the Company or any Company Subsidiary is a party, with respect to which the Company or any Company Subsidiary has any obligation or which are maintained, contributed to or sponsored by the Company or any Company Subsidiary for the benefit of all material any current or former employee, officer or director of the Company Benefit Plans or any Company Subsidiary, (ii) each employee benefit plan for which the Company or any Company Subsidiary could incur liability under ERISA, and material (iii) any Contracts, arrangements or understandings between the Company Benefit Arrangementsor any Company Subsidiary and any employee or former employee of the Company or any Company Subsidiary including, without limitation, any Contracts, arrangements or understandings relating in any way to a sale of the Company or any Company Subsidiary (collectively, the “Company Plans”). The Company has made available to Parent a true and complete and correct copies copy of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) such Company Plans and all plan documentsContracts relating thereto, or to the funding thereof, including, without limitation, all trust documentsagreements, insurance contracts, service provider agreements administration contracts, investment management agreements, subscription and amendments thereto; participation agreements, and record-keeping agreements, each as in effect on the date hereof, and, in the case of any Company Plan that is not in written form, Parent has been supplied with an accurate description of such Company Plan as in effect on the date hereof, (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; the most recently filed Internal Revenue Service (iii“IRS”) Form 5500 filings for the last three each Company Plan, if any, (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (viii) the most recent summary plan description for each Company Plan for which a summary plan description is required by applicable law, (iv) the most recently received IRS determination letter, if any, issued by the IRS with respect to any Company Plan that is intended to qualify under Section 401(a) of the Code, (v) the most recently prepared actuarial report or financial statement, if any, relating to a Company Plan and summaries a current schedule of material modifications thereto; assets (and the fair market value thereof assuming liquidation of any asset which is not readily tradable) held with respect to any funded Company Plan have been made available to Company, and (vi) all material notices or other communications received correspondence from the IRS, IRS or the Department of LaborLabor received within the prior three years which relates to a Company Plan. There has been no amendment to, announcement by the Company or any Company Subsidiary relating to, or change in employee participation or coverage under, any Company Plan which would increase materially the expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year. Each Company Plan (other Governmental Authority than employment or severance agreements) can be unilaterally terminated or amended by the Company without incurring material liability thereunder on no more than 90 days’ notice. No notice has been received by the Company of an increase or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesproposed increase in the cost of a Company Plan.
(b) Each Qualified None of the Company Plans is a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which the Company or any entity (whether or not incorporated) that is treated as a single employer together with the Company under section 414 of the Code (“ERISA Affiliate”) could, as of the date hereof, incur liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). To the Company’s knowledge, (i) no Company Multiemployer Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued any proceeding brought by the Internal Revenue Service PBGC and (ii) none of the “IRS”) Company or any Company ERISA Affiliate has received notice from any Company Multiemployer Plan that it is in reorganization or is insolvent, that increased contributions may be required to the effect avoid a reduction in plan benefits or that an excise tax has been imposed, or that such plan is qualified and intends to terminate or has terminated, (iii) neither the trust related thereto is exempt from federal income taxes under Sections 401(aCompany nor any ERISA Affiliate has incurred any liability (including any indirect, contingent or secondary liability) and 501(ato or on account of a Multiemployer Plan, pursuant to Section 409, 502(1), respectively515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code that could reasonably be expected to have a Material Adverse Effect individually or in the aggregate and no condition exists which presents a material risk to the Company or any ERISA Affiliate of incurring such a liability; and (iv) using actuarial assumptions and computation methods consistent with Part 1 of subtitle E of Title IV of ERISA, as of December 31, 2002, the Company and its ERISA Affiliates have no withdrawal liability under such Multiemployer Plans in the event of a complete withdrawal therefrom. None of the Company Plans (i) provides for the payment of separation, severance, termination or similar-type benefits to any person, (ii) obligates the Company or any Company Subsidiary to pay separation, severance, termination or similar-type benefits solely or partially as a result of any transaction contemplated by this Agreement, or (iii) obligates the Company or any Company Subsidiary to make any payment or provide any benefit as a result of a “change in control,” within the meaning of such term under Section 280G of the Code. None of the Company Plans provides for or promises retiree medical, anddisability or life insurance benefits to any current or former employee, officer or director of the Company or any Company Subsidiary. Each of the Company Plans is subject only to the knowledge Laws of the Company, no act United States or omission in the operation of such plan has occurred that could adversely affect its qualified status. a political subdivision thereof.
(c) Each Company Benefit Plan and each Company Benefit Arrangement has been administered (other than any Multiemployer Plans) is operated in all material respects in accordance with its terms and with the requirements of all applicable Laws, including ERISAincluding, without limitation, ERISA and the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no except where such non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could compliance would not reasonably be expected expected, individually or in the aggregate, to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified Except as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Neither , the Company nor any of its and the Company Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been have performed all obligations required to contribute to be performed by them under, are not in default under or in violation of, and have no knowledge of any Pension default or violation by any party to, any Company Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no No Action is pending or, to the knowledge of the Company, threatened Actions with respect to any Company Plan (other than routine benefit claims and proceedings with respect for benefits in the ordinary course) that would reasonably be expected to qualified domestic relations orders) relating have a Company Material Adverse Effect and, to the knowledge of the Company, no fact or event exists that would give rise to any such Action that would reasonably be expected to have a Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Material Adverse Effect.
(ed) Except as set forth on Each Company Plan that is intended to be qualified under Section 3.10(e401(a) of the Company Disclosure Schedule, no Company Benefit Plan Code has timely received a favorable determination letter from the IRS covering all tax law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001 or Company Benefit Arrangement contains any provision or is subject has applied to any Law that, as a result the IRS for such favorable determination letter within the applicable remedial amendment period under Section 401(b) of the Transactions or upon relatedCode, concurrent, or subsequent employment termination, would (iand the Company is not aware of any circumstances likely to result in the loss of the qualification of such Plan under Section 401(a) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(ge) Neither the Company nor any ERISA Affiliate has engaged in or has any knowledge of its Subsidiaries has, a prohibited transaction (within six (6the meaning of Section 406 of ERISA or Section 4975 of the Code) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute with respect to any “multiple employer welfare arrangement” as defined in Company Plan unless such transaction is exempt under Section 3(40) 408 of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with ERISA or Section 409A 4975 of the Code in all material respects.
(i) Code. Neither the Company nor any Company Subsidiary has incurred any material liability under, arising out of its Subsidiaries maintains or has maintained by operation of Title IV of ERISA (other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course), including, without limitation, any Benefit liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA, or (ii) the withdrawal from any Multiemployer Plan or Benefit Arrangement covering Multiple Employer Plan, and no fact or event exists which could reasonably be expected to give rise to any current such liability.
(f) All contributions, premiums or former employee of the payments required to be made with respect to any Company Plan have been made on or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United Statesbefore their due dates.
Appears in 2 contracts
Samples: Merger Agreement (Commonwealth Industries Inc/De/), Merger Agreement (Imco Recycling Inc)
Employee Benefit Plans. (a) Section 3.10(a3.8(a) of the Company Disclosure Schedule contains Letter sets forth a correct true and complete list of each “employee benefit plan” as defined in Section 3(3) of ERISA and any other material plan, policy, program, practice, agreement, understanding or arrangement providing compensation or other benefits to any current or former director, officer, employee or consultant (or to any dependent or beneficiary thereof) of the Company, any Company Subsidiary or any Company ERISA Affiliate, which are now, or with respect to any plan intended to be qualified under Section 401(a) of the Code, were within the past 6 years, maintained, sponsored or contributed to by the Company, any Company Subsidiary or any Company ERISA Affiliate, or under which the Company, any Company Subsidiary or any Company ERISA Affiliate has any material obligation or liability, whether actual or contingent, including, without limitation, all material incentive, bonus, deferred compensation, vacation, holiday, cafeteria, medical, disability, stock purchase, stock option, stock appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies, programs, practices or arrangements. Each “employee benefit plan” as defined in Section 3(3) of ERISA and each other material plan, policy, program, practice, agreement, understanding or arrangement providing compensation or other benefits to any current or former director, officer, employee or consultant (or to any dependent or beneficiary thereof) of the Company, any Company Subsidiary or any Company ERISA Affiliate, which are now, or were within the past 6 years, maintained, sponsored or contributed to by the Company, any Company Subsidiary or any Company ERISA Affiliate, or under which the Company, any Company Subsidiary or any Company ERISA Affiliate has any material obligation or liability, whether actual or contingent, including, without limitation, all material incentive, bonus, deferred compensation, vacation, holiday, cafeteria, medical, disability, stock purchase, stock option, stock appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies, programs, practices or arrangements is hereinafter referred to as a “Company Benefit Plans and material Plan”. Neither the Company, nor to the Knowledge of the Company, any other person, has any express or implied commitment, whether legally enforceable or not, to modify, change or terminate any Company Benefit ArrangementsPlan, other than with respect to a modification, change or termination required by ERISA, the Code, the Health Insurance Portability and Accountability Act of 1996 or any other applicable Law. The Company has delivered or made available to Parent true, correct and complete and correct copies of the following documents all Company Benefit Plans (or, if not so delivered, has delivered or made available to Parent a written summary of their material terms), and, with respect to each material Company Benefit Plan and material Company Benefit Arrangementthereto, to the extent applicable: (i) all plan documentsamendments, trust documentsagreements, insurance contractsContracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for other funding vehicles, determination letters issued by the last three (3) yearsIRS, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; annual reports (viForm 5500 series) all material notices or other communications received from filed with the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices and the most recent actuarial report or other written communications financial statement relating to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiessuch Company Benefit Plan.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been maintained, funded and administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA and the Code, and contributions and premium payments required to be made under the terms of any of the Company Benefit Plans as of the date of this Agreement have been timely made. With respect to the Company Benefit Plans, no event has occurred and, to the Knowledge of the Company, there exists no condition or set of circumstances in connection with which the Company or any Company Subsidiary could reasonably be expected to be subject to any material liability (other than for routine benefit claim liabilities) under the terms of, or with respect to, such Company Benefit Plans, ERISA, the Code or any other applicable Law, and neither the Company nor any ERISA Affiliate has any actual or contingent material liability under ERISA Section 502.
(c) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has obtained or is the subject of a favorable determination letter from the IRS that the Company Benefit Plan is so qualified and all related trusts are exempt from U.S. federal income taxation under Section 501(a) of the Code, and, to the Patient Protection Knowledge of the Company, nothing has occurred, whether by action or by failure to act, which could be reasonably expected to cause the loss of such qualification or exemption. Except as would not reasonably be expected to result in material liability to the Company or a Company Subsidiary, (i) there has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code and Affordable Care Act other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Company Benefit Plan, and no fiduciary of any Company Benefit Plan has any actual or contingent liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Benefit Plan, (“ACA”ii) no suit, administrative proceeding, action, claim or litigation has been brought, or to the Knowledge of the Company is threatened, against or with respect to any such Company Benefit Plan, including any audit or inquiry by the IRS or United States Department of Labor (other than routine benefits claims) and, to the Knowledge of the Company, there is no basis for any such suit, administrative proceeding, action, claim or litigation, (iii) none of the assets of the Company, any Company Subsidiary or any Company ERISA Affiliate are, or may reasonably be expected to become, the subject of any lien arising under ERISA or Section 412(n) of the Code, (iv) all Tax, annual reporting and other governmental filings required by ERISA and the Health Insurance Portability Code with respect to a Company Benefit Plan have been timely filed with the appropriate Governmental Entity and Accountability Act. With respect all notices and disclosures have been timely provided to participants, (v) all contributions and payments to each Company Benefit Plan are deductible under applicable Code sections including, as applicable, Sections 162 or 404, and Company Benefit Arrangement, (ivi) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that material excise Tax could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any Company Subsidiary under Chapter 43 of its Subsidiaries the Code with respect to any Pension Plan maintained by an ERISA AffiliateCompany Benefit Plan.
(d) There are no pending or, to the knowledge None of the Company, threatened Actions (other than routine benefit claims and proceedings any Company Subsidiary or any Company ERISA Affiliate sponsors, maintains, contributes to or has an obligation to contribute to, or has any actual or contingent liability with respect to qualified domestic relations orders) relating to to, any Company Benefit Plans or Company Benefit Arrangements “employee pension benefit plan” (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on defined in Section 3.10(e3(2) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or ERISA) that is subject to any Law that, as a result Title IV of the Transactions ERISA or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A Section 412 of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangementmultiemployer plan” as defined in Section 3(403(37) of ERISA.
(he) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered No amount that would be reasonably expected to be received (whether in accordance cash or property or the vesting of property), in connection with Section 409A the consummation of the Code in all material respects.
(i) Neither the Company nor transactions contemplated by this Agreement, by any of its Subsidiaries maintains employee, officer or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee director of the Company or any of its Subsidiaries that who is a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any Company Benefit Plan or was subject otherwise may be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(f) Except as required under COBRA, no Company Benefit Plan provides any of the following retiree or post-employment benefits to any person: medical, disability or life insurance or other welfare-type benefits. The Company, the Company Subsidiaries and each Company ERISA Affiliate are in compliance with (i) the requirements of COBRA, and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 and the regulations (including the proposed regulations) thereunder, except as would not be reasonably expected to result in material liability to the Laws Company, any Company Subsidiary or a Company ERISA Affiliate.
(g) Except as set forth on Section 3.8(g) of the Company Disclosure Letter, neither the Company nor any jurisdiction Company Subsidiary maintains sponsors, contributes to or has any material liability with respect to any employee benefit plan, program or arrangement that provides benefits to non-resident aliens with no United States source income outside of the United StatesStates (each, a “Company Foreign Benefit Plan”). Each Company Foreign Benefit Plan has been maintained, funded and administered in compliance in all material respects with all Laws applicable thereto and the respective requirements of such Company Foreign Benefit Plan’s governing documents, and no Company Foreign Benefit Plan has any unfunded or underfunded liabilities.
(h) Neither the Company nor any Company Subsidiary is a party to or otherwise bound by any collective bargaining Contract with a labor union or labor organization, nor is any such Contract presently being negotiated.
(i) The Company has identified in Section 3.8(i) of the Company Disclosure Letter and has made available to Parent true and complete copies of (i) all severance and employment agreements currently in effect with directors, officers or employees of or consultants to the Company or any Company Subsidiary, (ii) all severance programs and policies of each of the Company and each Company Subsidiary with or relating to its employees, and (iii) all plans, programs, agreements and other arrangements of each of the Company and each Company Subsidiary with or relating to its directors, officers, employees or consultants which contain change in control provisions. Neither the execution and delivery of this Agreement or other related agreements, nor the consummation of the transactions contemplated hereby or thereby will (either alone or in conjunction with any other event, such as termination of employment) (i) result in any payment (including, without limitation, severance, unemployment compensation, 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, (ii) significantly increase any benefits otherwise payable under any Company Benefit Plan or (iii) result in any acceleration of the time of payment or vesting of any benefits, except as may be required by applicable Law.
(j) The Company and the Company Subsidiaries have, for purposes of each relevant Company Benefit Plan, correctly classified those individuals performing services for the Company or any Company Subsidiary as common law employees, leased employees, independent contractors or agents.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Integrated Device Technology Inc)
Employee Benefit Plans. (a) For a period of one year following the Effective Time or such shorter period as a Company Employee remains employed with the Company or its Subsidiaries or the Parent or any of its Affiliates, the Parent shall provide, or shall cause to be provided, to each Company Employee (i) base salary and wages that are substantially comparable to those provided to such Company Employee immediately before the Effective Time, (ii) annual bonus opportunities that are substantially comparable to those provided to such Company Employee immediately before the Effective Time, and (iii) coverage under, at the Parent’s discretion, (x) the Company Employee Plans listed on Section 3.10(a2.14(a) of the Company Disclosure Schedule contains (excluding equity plans and defined benefit plans) at the same level and subject to substantially the same terms and conditions (taken as a correct whole) as provided to such Company Employee immediately before the Effective Time, or (y) the Parent’s benefit plans (excluding equity plans and complete list of all material Company Benefit Plans defined benefit plans) at substantially the same level and material Company Benefit Arrangements. The Company has made available subject to Parent complete substantially the same terms and correct copies conditions (taken as a whole) as provided to similarly situated employees of the following documents with respect to each material Company Benefit Plan Parent (or, at the Parent’s discretion, a combination of coverage under any plans referenced in the immediately preceding clauses (x) and material Company Benefit Arrangement(y)); provided, to however, that the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions requirements of all material non-written agreements relating this Section 5.17 shall not apply to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject Company Employee of a favorable advisory Subsidiary if and after such Subsidiary is sold or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, disposed of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes to an unaffiliated third party after the Effective Time; and provided further, that:
(i) with respect to the annual bonus opportunity of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither Employee under the applicable plan in which the Company nor any Employee participates as of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There Agreement (which are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on in Section 3.10(e2.14(a) of the Company Disclosure Schedule) for the Company’s 2023 fiscal year, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is such bonus opportunity and plan shall remain in place through the end of the Company’s 2023 fiscal year, subject to adjustments by Parent (or the Company post-Closing) as it deems reasonably appropriate to exclude the effect of the transactions contemplated hereby, and the bonus amount shall be based on actual achievement of the performance goals currently in place for the Company’s 2023 fiscal year (subject to the foregoing adjustments), and any Law thatCompany Employee whose employment is terminated without Cause (as defined in the applicable plan document or if no definition, as a result defined in the Company’s Executive Annual Cash Incentive Plan) after the Effective Time and prior to the date payment of the Transactions bonus is made for the Company’s 2023 fiscal year shall be entitled to a bonus payment, if such Company Employee would have been entitled to a bonus based on Company performance against applicable budgets and targets, equal to the actual amount if the Effective Time occurs on or upon relatedafter June 30, concurrent2023 and a pro rata amount for the period of employment during such fiscal year if the Effective Time occurs prior to June 30, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, 2023;
(ii) require severanceprovided that such contribution has been accrued by the Company in its financial statements in the ordinary course of business prior to the date hereof (and subject to applicable nondiscrimination requirements), termination the employer contributions to be made under the Company’s 401(k) plan (or retention payments the Parent’s 401(k) plan, if applicable) for each eligible Company Employee for the Company’s 2023 fiscal year shall be at least three percent of such Company Employee’s compensation (as defined in such applicable plan), and such contributions shall be deposited into the plan’s trust on the earlier of the regularly scheduled date such payment is made or if the plan is to be terminated pursuant to Section 5.17(c), the date the plan is terminated;
(iii) forgive any indebtedness. No the arrangements set forth in Items 2, 3 and 4 under the subheading “Individual Agreements” on attachment 2.14(a)(i) of the Company’s Disclosure Schedule shall remain in place in accordance with the terms of such arrangements as in effect on the date hereof;
(iv) for a period of one year following the Effective Time, the Xxxxxxx Xxxxxxxxx Benefits Plan, including the Supplement thereto, as in effect immediately prior to the date hereof shall not be amended or terminated with respect to the Company Benefit Plan Employees who participate in such plan as of the date hereof, in a manner that reduces the benefits provided thereunder to such participants; and
(v) if, after the Effective Time, the employment of a Company Employee is terminated by the Company without “Cause” or, (x) with respect to a Company Employee who is a party to an “Executive Change in Control Agreement” or (y) to the extent such a right is provided for in a “Poppin Retention Award Agreement” in each case as listed on Schedule 2.14(k), by the Company Benefit Arrangement contains any provision Employee with “Good Reason” (as “Cause” and “Good Reason” are defined in the applicable written agreement between such Company Employee and the Company or is its Subsidiaries), then subject to the execution, delivery and nonrevocation by such Company Employee of a release agreement in customary form as reasonably determined by the Parent, any Law that awards granted to such Company Employee in respect of Company RSUs pursuant to Section 1.8(a)(ii) (and which Company RSUs would promise or provide have vested upon such terminations under such agreements), and any tax gross ups or tax indemnification under Sections 280G or 409A of dividend equivalents accrued thereon, shall vest in full upon and be settled in accordance with the Codeunderlying award agreement.
(fb) Except as set forth If a new benefit plan is established in replacement of a Company Employee Plan listed on Section 3.10(f2.14(a) of the Company Disclosure ScheduleSchedule that covers a Company Employee, no then for all purposes (including purposes of vesting, eligibility to participate, level of benefits and entitlement to paid-time-off and leaves of absence) under such new plan, each Company Benefit Plan or Company Benefit Arrangement contains any provision or is Employee shall, subject to applicable law and applicable tax qualification requirements, be credited with his or her years of service with the Company and its Subsidiaries and their respective predecessors before the Effective Time, to the same extent as such Company Employee was entitled, before the Effective Time, to credit for such service under any Law thatsimilar Company Employee Plan in which such Company Employee participated or was eligible to participate immediately prior to the Effective Time; provided that the foregoing shall not apply (i) to the extent that its application would result in a duplication of benefits, as a result (ii) for purposes of any equity or phantom equity plan or program or (iii) for purposes of any defined benefit plan. The Parent shall use commercially efforts to cause the Transactions applicable new plan to: (x) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Employees, to the extent such pre-existing conditions, exclusions or upon relatedwaiting periods were satisfied under the similar Company Employee Plan in effect immediately prior to the Effective Time, concurrent, and (y) provide each such Company Employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar Company Employee Plan in effect immediately prior to the Effective Time) in satisfying any applicable deductible or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides postout-employment medical benefits except as required by COBRA or other applicable Lawsof-pocket requirements.
(gc) Neither the Company nor any of its Subsidiaries has, within six If requested by Parent at least five (65) years days prior to the Closing Date, effective as of immediately prior to the Closing Date and contingent upon the occurrence of the Closing, pursuant to resolutions of the Company’s Board of Directors that are reasonably satisfactory to Parent, the Company shall terminate the Company’s 401(k) plan and/or terminate the Company’s or its Subsidiary’s participation in a 401(k) plan of a PEO (each, a “Company 401(k) Plan”), and provide that participants in the Company 401(k) Plan shall become fully vested in any unvested portion of their Company 401(k) Plan accounts as of the date of this Agreement, maintained, sponsoredsuch plan or such participation is terminated. In connection with any such termination of, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40participation in, a Company 401(k) of ERISA.
(hPlan, Parent shall cause a 401(k) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company plan sponsored by Parent or any of its Subsidiaries that to accept from the applicable Company 401(k) Plan the “direct rollover” of the account balance (excluding loan notes) of each Company Employee who participated in the applicable Company 401(k) Plan as of the date such plan or participation is or was terminated who elects such direct rollover in accordance with the terms of the Company 401(k) Plan and the Code, subject to the Laws terms and conditions of Parent’s or its Affiliate’s applicable 401(k) plan.
(d) Nothing in this Agreement shall prohibit the Parent or any jurisdiction outside of its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) from amending or terminating, or shall be construed as creating or amending, any Company Employee Plans or any other compensation or benefit plans, programs, policies, practices, agreements and arrangements sponsored or maintained by the Company, Parent or any of their Subsidiaries, including each Company Employee Plan and any newly established employee benefit plan, and nothing in this Agreement shall otherwise require Parent or any of its Subsidiaries to create or continue any particular compensation or benefit plan, program, policy, practice, agreement or arrangement after the Effective Time or to employ any particular person on any particular terms; provided that the Parent and its Subsidiaries comply with the foregoing provisions of this Section 5.17. The provisions of this Section 5.17 are solely for the benefit of the United Statesparties to this Agreement, and no current or former employee, officer, director, manager or consultant, or any other individual associated therewith, shall be regarded for any purpose as a third party beneficiary of this Section 5.17.
Appears in 2 contracts
Samples: Merger Agreement (Kimball International Inc), Merger Agreement (Kimball International Inc)
Employee Benefit Plans. (ai) Section 3.10(aSchedule 3.1(k) of to the Company Disclosure Schedule contains a correct true and complete list of all material pension, stock option, stock purchase, benefit, welfare, profit-sharing, retirement, disability, vacation, severance, hospitalization, insurance, incentive, deferred compensation and other similar fringe or employee benefit plans, funds, programs or arrangements, whether written or oral, in each of the foregoing cases which is maintained for the benefit of, or relates to any or all current or former employees of the Company Benefit Plans nor any of its subsidiaries and material any other entity ("ERISA Affiliate") related to the Company Benefit Arrangementsunder Section 414(b), (c), (m) and (o) of the Code (the "Employee Plans"). The Neither the Company nor any ERISA Affiliate of the Company has any commitment or formal plan, whether or not legally binding, to create any additional employee benefit plan or modify or change any existing Employee Plan other than as may be required by the express terms of such Employee Plan or applicable law.
(ii) With respect to each Employee Plan that has been qualified or is intended to be qualified under the Code or that is an "Employee Benefit Plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), such Employee Plan has been duly approved and adopted by all necessary and appropriate action of the Board of Directors of the Company (or a duly constituted committee thereof), and, with respect to each Employee Plan, the Company heretofore has delivered or made available to Parent complete and correct copies of each of the following documents with respect to each material Company Benefit documents:
(A) the Employee Plan and material Company Benefit Arrangementany amendments thereto (or if the Employee Plan is not a written Employee Plan, a description thereof);
(B) the annual report, (including all Schedules attached thereto), independent accountant's report, actuarial report, if required under ERISA and, for any Employee Plan to the extent which Section 401(k) or 401(m) are applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings discrimination testing for the last three (3) most recent plan years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description report prepared with respect thereto in accordance with Statement of Financial Accounting Standards No. 87;
(C) the Summary Plan Description and summaries of material modifications and all modifications thereto communicated to employees with respect thereto; ;
(viD) all material notices if the Employee Plan is funded through a trust or any third party funding vehicle, the trust or other communications funding agreement and the financial statements thereof;
(E) the most recent determination letter received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”with respect to each Employee Plan intended to qualify under Section 401 or 501(c)(9) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code; and
(F) any pending favorable determination letter applications filed with the Internal Revenue Service, andtogether with all attachments thereto and all subsequent correspondence and communications with regard to such application.
(iii) With respect to the Employee Plans, all required contributions for all periods ending before the Closing Date have been or will be paid in full by the Closing Date or will be accrued on the financial statements of the Company or ERISA Affiliate.
(iv) Neither the Company nor any ERISA Affiliate contributes or, during the five year period prior to the date hereof contributed, to or has any actual or contingent liabilities under a "multi-employer plan" as defined in Sections 3(37) and 4001(a)(3) of ERISA or Section 414 of the Code.
(v) With respect to each Employee Plan (i) no prohibited transactions as defined in Section 406 of ERISA or Section 4975 of the Code have occurred or are expected to occur as a result of the Mergers or the transactions contemplated by this Agreement which would result in a material liability for the Company or any ERISA Affiliate, (ii) no action, suit, grievance, arbitration or other type of litigation, or claim with respect to the assets of any Employee Plan (other than routine claims for benefits made in the ordinary course of plan administration for which plan administrative review procedures have not been exhausted) is pending or, to the knowledge Knowledge of the Company, no act threatened or omission imminent against the Company, any ERISA Affiliate or any fiduciary (in its capacity as a fiduciary of the operation Employee Plan), as such term is defined in Section 3(21) of such plan has occurred ERISA ("Fiduciary"), including, but not limited to, any action, suit, grievance, arbitration or other type of litigation, or claim regarding conduct that could adversely affect its qualified status. Each Company Benefit allegedly interferes with the attainment of rights under any Employee Plan and each (iii) the Company Benefit Arrangement has been administered no Knowledge of any facts which may reasonably be expected to give rise to any such actions, suits, grievances, arbitration or other type of litigation, or claims with respect to any Employee Plan. To the Knowledge of the Company, neither the Company nor any of its subsidiaries, nor any of their directors, officers, Employees or any Fiduciary has any material liability for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of any Employee Plan. None of the Employee Plans is subject to any pending investigations or to the Knowledge of the Company threatened investigations from any Governmental Agencies who enforce applicable laws under ERISA and the Code.
(vi) Each of the Employee Plans is, and has been, in all material respects respects, operated in accordance with its terms and each of the Employee Plans, and the administration thereof, is, and has been, in all material respects in compliance with the requirements of any and all applicable Lawsstatutes, orders or governmental rules or regulations currently in effect, including, but not limited to, ERISA and the Code. All required reports and descriptions of the Employee Plans (including but not limited to Form 5500 Annual Reports, Form 1024 Application for Recognition of Exemption Under Section 501(a), Summary Annual Reports and Summary Plan Descriptions) have been timely filed and distributed as required by ERISA and the Code. Any notices required by ERISA or the Code or any other state or federal law or any ruling or regulation of any state or federal administrative agency with respect to the Employee Plans, including ERISAbut not limited to any notices required by Section 204(h), Section 606 or Section 4043 of ERISA or Section 4980B of the Code, have been appropriately given except to the Patient Protection and Affordable Care Act extent that a failure to do so will not result in a material liability by the Company or any ERISA Affiliate.
(“ACA”vii) and the Health Insurance Portability and Accountability Act. With The IRS has issued a favorable determination letter with respect to each Employee Plan intended to be "qualified" within the meaning of Section 401(a) of the Code and no such letter has not been revoked and, to the Knowledge of the Company, no circumstances exist that could adversely affect the qualified status of any such plan and the exemption under Section 501(a) of the Code of the trust maintained thereunder. Each Employee Plan intended to satisfy the requirements of Section 125, 501(c)(9) or 501(c)(17) of the Code has satisfied such requirements in all material respects.
(viii) Neither the Company Benefit or any ERISA Affiliate maintains or, during the five year period prior to the date hereof maintained, or has any actual or contingent liabilities under an "employee pension benefit plan" as defined in Section 3(2) of ERISA that is or was subject to Title IV or Section 302 of ERISA.
(ix) No Employee Plan and Company Benefit Arrangementprovides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for Employees for periods extending beyond their retirement or other termination of service, other than (i) no non-exempt transactions prohibited coverage mandated by Code Section 4975 4980B of the Code, Section 601 of ERISA or ERISA Section 406 have occurred and other applicable law, (ii) no act death benefits under any "employee pension benefit plan" as defined in Section 3(2) of ERISA, (iii) benefits the full cost of which is borne by the Employee (or omission has occurred his beneficiary) or (iv) Employee Plans that could reasonably can be expected to have a Material Adverse Effect. Neither amended or terminated by the Company nor without the consent of a participant or beneficiary. The Company does not have any current or projected liability with respect to post-employment or post-retirement welfare benefits for retired, former, or current Employees of its Subsidiaries is liable the Company.
(x) No material amounts payable under the Employee Plans will fail to be deductible for Federal income tax purposes by virtue of Section 162(m) of the Code.
(xi) Except to the persons set forth on Schedule 3.1(k)(xi), the transactions contemplated by this Agreement will not be the direct or indirect cause of any penalty amount paid or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification payable by the Company or any of its Subsidiaries has been properly subsidiaries being classified for purposes as an excess parachute payment under Section 280G of participation the Code and benefit accrual no person will be entitled to a "gross up" or other similar payment in respect of excise taxes under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected Section 4999 of the Code with respect to have a Material Adverse Effectthe transactions contemplated by this Agreement.
(cxii) Neither Except as specifically identified on Schedule 3.1(k)(xii) to the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries hassubsidiaries will be obligated to pay to any Employee separation, within six (6) years prior to the date severance, termination or similar benefits as a result of any transaction contemplated by this Agreement, maintainednor shall any such transaction accelerate the time of payment or vesting, sponsored or been required to contribute to increase the amount of any Pension Plan. There are no current benefit or contingent Liabilities that could reasonably be expected to be imposed upon other compensation payable by the Company or any of its Subsidiaries with respect subsidiaries to any Pension Plan maintained by an ERISA AffiliateEmployee.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (RFS Hotel Investors Inc), Merger Agreement (CNL Hospitality Properties Inc)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule SCHEDULE 2.18 contains a correct true and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangementbonus, to the extent applicable: (i) all plan documentsdeferred compensation, trust documentsincentive compensation, insurance contractsstock purchase, service provider agreements and amendments thereto; (ii) written descriptions of all material nonstock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-written agreements relating to any such plan sharing, pension, or retirement plan, program, agreement or arrangement; , and each other employee benefit plan, program, agreement or arrangement (iii) Form 5500 filings for other than arrangements involving the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries payment of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(awages), respectivelysponsored, of the Code, and, maintained or contributed to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect required to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected contributed to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified Subsidiaries, for purposes the benefit of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries, whether formal or informal and whether legally binding or not (the "PLANS") with respect to which the Company or any of its Subsidiaries has or may in the future have any liability or obligation to contribute or make payments of any kind.
(b) With respect to each of the Plans, the Shareholders have heretofore delivered to Purchaser true, complete and correct copies of each of the following documents:
(i) the Plan (including all amendments thereto)(or, in the case of any unwritten Plans, descriptions thereof);
(ii) if the Plan is funded through a trust or any third party funding vehicle, such as an insurance contract, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof; and
(iii) all contracts relating to the Plans with respect to which the Company or any of its Subsidiaries may have any liability, including, without limitation, insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements;
(c) Full payment has been made, or will be made in accordance with the terms of each of the Plans and any applicable collective bargaining agreement required to pay, and all such amounts properly accrued through the Closing Date with respect to the current plan year thereof will be paid by the Company or one of its Subsidiaries on or prior to the Closing Date or were properly recorded on the Base Balance Sheet.
(d) During the one (1) year period ending on the date of this Agreement, there has been no change in the manner in which contributions to any Plan are made or the basis on which such contributions are determined.
(e) Each of the Plans has been operated and administered in all material respects in accordance with its terms and all Applicable Laws. All reports, returns and similar documents with respect to the Plans required to be filed with any governmental agency or distributed to any Plan participant have been duly and timely filed or distributed and, so far as APAX is aware, all reports, returns and similar documents actually filed or distributed were true, complete and correct in all material respects. There are no investigations by any governmental agency or other claims (except claims for benefits payable in the normal operation of the Plan), suits or proceedings against or involving any Plan or asserting any rights to or claims for benefits under any Plan that could give rise to any material liability and there are not any facts that could give rise to any material liability in the event of any such investigation claim, suit or proceeding.
(f) No employee of the Company or any of its Subsidiaries will be entitled to any additional benefits or any acceleration of the time of payment or vesting of any benefits under any Plan as a result of the transactions contemplated by this Agreement.
(g) No Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees upon retirement or other termination of service (other than (i) coverage mandated by Applicable Law, (ii) deferred compensation benefits accrued as liabilities on the books of the Company or any of its Subsidiaries or (iii) benefits the full cost of which is borne by the current or former employee (or his beneficiary)).
(h) With respect to each Plan that is funded wholly or was subject partially through an insurance policy, there will be no liability of the Company or any of its Subsidiaries, as of Closing Date, under any such insurance policy or ancillary agreement with respect to such insurance policy in the nature of a retroactive rate adjustment loss sharing arrangement or other actual or contingent liability arising wholly partially out of events occurring prior to the Laws Closing Date.
(i) Other than current or contingent liabilities disclosed on SCHEDULE 2.18, neither the Company nor any of its Subsidiaries has any jurisdiction outside of the United Statesmaterial current or contingent liability with respect to any Plan.
Appears in 2 contracts
Samples: Share Purchase Agreement (Xpedite Systems Inc), Share Purchase Agreement (Premiere Technologies Inc)
Employee Benefit Plans. (a) Section 3.10(a3.11(a) of the Company Disclosure Schedule contains sets forth a correct true and complete list of all material Company Benefit Plans (other than any employment or consulting agreements or offer letters that, in each case, do not contain any change in control benefits or severance or require advance notice of employment termination and examples of which have been made available to Parent prior to the date of this Agreement). With respect to each material Company Benefit Arrangements. The Plan, the Company has made available to Parent true, correct and complete and correct copies of the following such Plan documents (or a description thereof, if such Plan is not written) and all material amendments thereto, together with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent a copy of (if applicable: ): (i) all plan documents, trust documentseach trust, insurance contracts, service provider agreements and amendments theretoor other funding arrangement; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries summary of material modifications theretomodifications; (viiii) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the most recently filed Internal Revenue Service (the “IRS”) Form 5500; (iv) the most recently prepared actuarial reports and financial statements in connection with each such Plan; (v) all documents and correspondence relating thereto received from or provided to the effect Department of Labor, the IRS or any other Governmental Authority since January 1, 2021, to the extent material or non-routine; and (vi) all current employee handbooks, material manuals and material policies.
(b) Neither the Company nor any ERISA Affiliate has maintained, contributed to or been obligated to contribute to, or has (or could reasonably be expected to have) any liability with respect to, any plan, program, fund, or arrangement at any time during the six-year period ending on the Closing Date that such constitutes a (i) defined benefit pension plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, or a plan subject to Section 302 or Title IV of ERISA or Section 412 of the Code; (ii) multiemployer plan within the meaning of Section 3(37) of ERISA; or (iii) multiple employer welfare arrangement as defined in Section 3(40) of ERISA. Other than as set forth in the arrangements listed on Section 3.11(g) of the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries has any liability in respect of, and no Plan provides or promises, any post-employment health or life insurance or similar benefits to any Employee or Non-Employee Service Provider except as required under Section 4980B of the Code or any other Law or benefits that are provided through the end of the month in which termination of employment occurs.
(c) With respect to each Plan, no event has occurred and, to the knowledge Knowledge of the Company, there exists no act condition or omission set of circumstances, in connection with which the operation Company or any of the Company Subsidiaries could be subject to any material liability under the terms of such Plan or under applicable Law.
(d) Each Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or approval letter from the IRS with respect to such qualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance and, to the Knowledge of the Company, nothing has occurred that could would reasonably be expected to adversely affect its the qualified statusstatus of such Plan. Each Company Benefit Plan that is required to be funded is and each Company Benefit Arrangement has been funded.
(e) Each Plan has been established, maintained and administered in all material respects in accordance with its terms and in compliance with all the applicable Laws, including provisions of ERISA, the Code, the Patient Protection Code and Affordable Care Act (“ACA”) other applicable Laws and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) regulatory guidance issued by any Governmental Authority Authority. Each Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been timely amended (including the IRS if applicable) to comply and has been operated in material compliance with, and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of Company and the Company Disclosure ScheduleSubsidiaries have materially complied in practice and operation with, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result all applicable requirements of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or Section 409A of the Code.
(f) Except as set forth on Section 3.10(f3.11(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject with respect to any Law thatPlan, as of the date of this Agreement and except as would not reasonably be expected to result in material liability to the Company or any Company Subsidiary, (i) no Actions (other than routine claims for benefits and appeals of denied claims in the ordinary course) are pending or, to the Knowledge of the Company, threatened in writing and (ii) no administrative investigation, audit or other administrative proceeding by the Department of Labor, the IRS or other Governmental Authority is pending, in progress or, to the Knowledge of the Company, threatened in writing.
(g) Except as expressly set forth in this Agreement (including Section 2.04) or Section 3.11(g) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the Transactions shall (either alone or in conjunction with the termination of employment or service of any Employee or Non-Employee Service Provider following, or in connection with, the Transactions): (i) entitle any Employee or Non-Employee Service Provider to severance pay or benefits or any increase in severance pay or benefits upon any termination of employment or service with the Company or any Company Subsidiary; (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation pursuant to, any of the Plans to any Employee or Non-Employee Service Provider; or (iii) limit or restrict the right of the Company or any Company Subsidiary or, after the consummation of the Transactions, Parent, to merge, amend or terminate any of the Plans. None of the Plans in effect immediately prior to the Closing (or any other Contract) would result separately or in the aggregate (including, without limitation, as a result of this Agreement or the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide Transactions) in the payment of any payment or compensation that would constitute an “excess parachute payment” under within the meaning of Section 280G of the Code. No Neither the Company Benefit Plan nor any Company Subsidiary has any obligation to gross-up, indemnify or Company Benefit Arrangement provides post-employment medical benefits except as required otherwise reimburse any person for any tax incurred by COBRA such person, including under Section 409A or other applicable Laws4999 of the Code.
(gh) Neither the Company nor any Company Subsidiary has any commitment (i) to create, incur liability with respect to or cause to exist any other compensation, benefit, fringe benefit or other plan, program, arrangement or agreement or to enter into any contract or agreement to provide compensation or benefits to any individual, in each case other than as required by the terms of its Subsidiaries hasthe Plans as in effect as of the date hereof or (ii) to modify, within six change or terminate any Plan, other than a modification, change or termination required by applicable Law.
(6i) years prior With respect to each Plan that is maintained outside of the United States or that provides benefits to Non-Employee Service Providers outside of the United States: (i) the fair market value of the assets of each funded Plan, the liability of each insurer for any Plan funded through insurance or the book reserve established for any Plan, together with any accrued contributions, is sufficient in all material respects to procure or provide for the accrued benefit obligations, as of the date of this Agreement, maintainedwith 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 Plan, sponsoredand no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; (ii) from and after the Closing, Parent and its Subsidiaries shall receive the full benefit of any such funds, accruals or been reserves under each Plan; and (iii) each Plan required to contribute to any “multiple employer welfare arrangement” as defined be registered with applicable Governmental Authority has been registered and has been maintained in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code good standing in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Merger Agreement (Boston Scientific Corp), Merger Agreement (Axonics, Inc.)
Employee Benefit Plans. (ai) Section 3.10(a4.02(m)(i) of the Company Disclosure Schedule contains a correct and complete list of lists all material “employee benefit plans” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA, and all bonus, stock option, stock purchase, stock appreciation right, restricted stock, stock based, incentive, retention, deferred compensation, retiree medical or life insurance, supplemental retirement, termination, severance, employment or other compensation or benefit plans, programs, arrangements, contracts or agreements to or with respect to which the Company or any of its Subsidiaries is a party or has any current or future obligation or that are maintained, contributed to or sponsored by the Company or any of its Subsidiaries for the benefit of any current or former employee, officer, director or independent contractor of the Company or any of its Subsidiaries (collectively, the “Benefit Plans and material Company Benefit ArrangementsPlans”). The Company has heretofore made available to Parent true and complete and correct copies of each of the Benefit Plans and the following related documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent (if applicable: ): (i) all summary plan documentsdescriptions, trust documentsamendments, insurance contractsmodifications or material supplements to any Benefit Plan, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating any trust instruments, insurance contracts and, with respect to any such plan or arrangement; employee stock ownership plan, loan agreements forming a part of any Benefit Plan, (iii) the annual report (Form 5500 filings for the last three (3) years5500), including all schedules theretoif any, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by filed with the Internal Revenue Service (the “IRS”) for the last two plan years, (iv) the most recently received determination letter from the IRS, if any, relating to a Benefit Plan, and (v) the most recently prepared actuarial report for each Benefit Plan (if applicable) for each of the last two years. Except as specifically provided in the foregoing documents delivered or made available by the Company to Parent, there are no amendments to the effect Company’s Benefit Plans that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(ahave been adopted or approved.
(ii) and 501(a), respectively, Each Benefit Plan of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been established, operated and administered in all material respects in accordance with its terms and with the requirements of all applicable Laws, including ERISA, ERISA and the Code. Within the past three (3) years, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any none of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes taken any action to take corrective action or make a filing under any voluntary correction program of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangementthe IRS, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any Department of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company Labor or any of its Subsidiaries other Governmental Authority with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending orBenefit Plan, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee none of the Company or any of its Subsidiaries has any Knowledge of any plan defect that would qualify for correction under any such program.
(iii) Section 4.02(m)(iii) of the Company Disclosure Schedule identifies each Benefit Plan of the Company that is or was subject intended to be qualified under Section 401(a) of the Code (the “Qualified Plans”). The IRS has issued a favorable determination letter with respect to each Qualified Plan of the Company and the related trust, which letter has not been revoked (nor has revocation been threatened), and, to the Laws Knowledge of the Company, there are no existing circumstances and no events have occurred that could reasonably be expected to adversely affect the qualified status of any jurisdiction outside Qualified Plan or the related trust or increase the costs relating thereto. No trust funding any Benefit Plan is intended to meet the requirements of Section 501(c)(9) of the United StatesCode.
(iv) None of the Company, any of its Subsidiaries or any trade or business of the Company or any of its Subsidiaries, whether or not incorporated, all of which together with the Company would be deemed a “single employer” within the meaning of Section 4001 of ERISA (an “ERISA Affiliate”) maintains or contributes to or has within the past six (6) years maintained or contributed to an “employee benefit plan” within the meaning of
Appears in 2 contracts
Samples: Merger Agreement (Pacwest Bancorp), Merger Agreement (Square 1 Financial Inc)
Employee Benefit Plans. (a) Section 3.10(aSchedule 3.13(a)(i) attached hereto sets forth a list of the each Company Disclosure Benefit Plan. Schedule contains 3.13(a)(ii) attached hereto sets forth a list of each Seller Benefit Plan. With respect to each Seller Benefit Plan, Seller has provided to Acquiror a true, correct and complete list copy of all material the Seller Benefit Plan or a summary thereof and the most recent summary plan description for each Seller Benefit Plan for which a summary plan description is required by Law. With respect to each Company Benefit Plans Plan, Seller and material Company Benefit Arrangements. The Company has made available have provided to Parent Acquiror a true, correct and complete and correct copies copy of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent (where applicable: ): (i) each writing constituting a part of such Company Benefit Plan, including, without limitation, all plan documentsdocuments (including amendments), benefit schedules, trust documentsagreements, and insurance contracts, service provider agreements contracts and amendments theretoother funding vehicles; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangementthe two (2) most recent Annual Reports (Form 5500 Series) and accompanying schedules, if any; (iii) Form 5500 filings for the last three (3) yearscurrent summary plan description, including all schedules thereto, annual report, financial statements and any related actuarial reportsif any; (iv) nondiscrimination testing results for the last three (3) yearsmost recent annual financial report, if any; (v) the most recent summary plan description and summaries of material modifications theretodetermination letter or opinion letter from the IRS, if any; (vi) all material notices pending applications for rulings, determinations or other communications received from opinions with respect to any Company Benefit Plan, if any, filed with any Governmental Authority (including the Department of Labor and the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees); and (viiivi) employee manuals collective bargaining agreements (including side agreements and letter agreements), if any, relating to the establishment, maintenance, funding and operation of any Plan. Except as specifically provided in the foregoing documents, which have been provided to Acquiror, there are no amendments to any Company Benefit Plan that have been adopted or handbooks containing personnel approved, nor has Company or employee relations policiesany of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plan.
(b) Each Company Benefit Plan and the Seller 401(k) Plan has been administered, in all material respects, in accordance with its terms and all applicable Laws, including ERISA and the Code.
(c) Each Company Benefit Plan that is a Qualified Plan has and the Seller 401(k) Plan, which is a Qualified Plan, (i) have received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued (ii) have been established under a standardized master and prototype or volume submitter plan for which a current favorable advisory letter or opinion letter has been obtained by the Internal Revenue Service (the “IRS”) plan sponsor and is valid as to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes adopting employer, (iii) have timely made an application for a favorable determination letter or (iv) have time remaining under Sections 401(a) and 501(a), respectively, applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter. To Knowledge of the Code, and, to the knowledge of the Company, there are no act existing circumstances or omission in the operation of such plan has any events that have occurred that could adversely affect the qualified status of any Qualified Plan or its qualified statusrelated trust.
(d) There is no pending or, to the Knowledge of Company, threatened claim (other than a routine claim for benefits), proceeding, examination, audit, investigation or other proceeding with respect to Company Benefit Plan. Each To the Knowledge of Company, neither the Seller 401(k) Plan nor any Company Benefit Plan is currently under examination or audit by any Governmental Authority, including the Department of Labor or the IRS.
(e) All contributions, premium payments and each other payments required to be made by Company Benefit Arrangement has and its Subsidiaries in connection with the Plans as of the date of this Agreement have been administered in all material respects made. No unfunded liabilities exist with respect to any Plan other than those accrued on the latest Financial Statements in accordance with its terms Applicable Accounting Principles or arising since August 31, 2012, and required to be recorded as a current liability in accordance with all applicable LawsApplicable Accounting Principles.
(f) Neither Company nor any ERISA Affiliate sponsors or has any liability with respect to, including ERISAand neither Company nor any ERISA Affiliate, within the last six years, has sponsored or has incurred any liability with respect to a Pension Plan, Multiemployer Plan or any plan or arrangement subject to Title IV of ERISA or Section 412 of the Code, the Patient Protection and Affordable Care Act .
(“ACA”g) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has any obligation to provide post-employment life insurance, death or medical benefits other than health care continuation benefits described in Section 4980B of the Code or any other similar Law. No legally binding commitments have been made by Company or its Subsidiaries to improve or otherwise amend any Company Benefit Plan except as required by applicable Law.
(h) Other than as set forth in this Agreement, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will: (i) entitle any current or former employee of Company or its Subsidiaries to severance pay, unemployment compensation under any arrangement that is liable for not required by applicable Law or to any penalty other payment, benefit or excise taxes assessable award under ACAany Plan, other than a Qualified Plan, (ii) accelerate or modify the time of payment or vesting, or increase the amount of any benefit, award or compensation due any such employee or former employee under any Plan or (iii) result in any forgiveness of indebtedness, trigger any funding obligation under any Plan or impose any restrictions or limitations on Company or its Subsidiaries’ rights to administer, amend or terminate any Company Benefit Plan. Each individual classified as an independent contractor No person is entitled to receive any additional payment (including any tax gross-up or other non-employee classification by the payment) from Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions imposition of the excise taxes required by Section 4999 of the Code or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or taxes required by Section 409A of the Code.
(fi) Except as set forth on To the Knowledge of Company, each Company Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 3.10(f409A(d)(1) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or Code) is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or currently and has been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance compliance with Section 409A of the Code, its Treasury regulations, and any administrative guidance relating thereto; and no additional tax under Section 409A(a)(1)(B) of the Code is reasonably expected to be incurred by a participant in all material respectsany such Company Benefit Plan.
(ij) Neither Company or its Subsidiaries, including any fiduciary employed by Company or its Subsidiaries, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Company nor Code or Section 406 of ERISA), which could subject any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company Benefit Plans or their related trusts, Company or its Subsidiaries or any of its Subsidiaries Person that is Company has an obligation to indemnify, to any tax or was subject to the Laws of any jurisdiction outside penalty imposed under Section 4975 of the United StatesCode.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Employee Benefit Plans. (a) Section 3.10(a3.11(a) of the Company GSM Disclosure Schedule contains sets forth a correct true and complete list of each “employee benefit plan” as defined in Section 3(3) of ERISA and each other material employment, incentive, bonus, deferred compensation, profit-sharing, pension, retirement, vacation, holiday, sick pay, cafeteria, fringe benefit, medical, disability, retention, severance, termination, change in control, equity-based compensation and other compensation or benefit plan, policy, program, agreement or arrangements (whether written or oral) providing compensation or other benefits to any current or former director, officer, employee or consultant (or to any dependent or beneficiary thereof) of GSM, maintained, sponsored or contributed to by GSM or any of its Subsidiaries, or under which GSM or any of its Subsidiaries has any obligation or liability, whether actual or contingent (each a “GSM Benefit Plan”). For purposes of this Section 3.11(a), all employment agreements with any director or any “executive officer” of GSM (within the meaning of Rule 405 under the Securities Act), shall be deemed “material”.
(b) With respect to each material Company GSM Benefit Plans and material Company Benefit Arrangements. The Company Plan, GSM has made available to Parent FA complete and correct accurate copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documentssuch GSM Benefit Plan, trust documentsincluding any amendment thereto (or, insurance contractsin the case of any unwritten GSM Benefit Plan, service provider agreements and amendments thereto; a written description thereof), (ii) written descriptions of all material non-written agreements relating to any such plan each trust, insurance, annuity or arrangement; other funding contract related thereto, (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries any summary of material modifications (if any) prepared for each GSM Benefit Plan, (iv) the two most recent financial statements and actuarial or other valuation reports prepared with respect thereto; , (v) the most recent determination or opinion letter from the IRS and (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority two most recent annual reports on or after January 1, 2014; Form 5500 required to be filed with the IRS with respect thereto (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesif any).
(bc) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company GSM Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, ERISA and the Code, and payments and contributions required to be made under the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor terms of any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified the GSM Benefit Plans as an independent contractor or other non-employee classification by of the Company or any date of its Subsidiaries has this Agreement have been timely made or, if not yet due, have been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither reflected on the Company nor any of its Subsidiaries has, within six (6) years most recent consolidated balance sheet filed or incorporated by reference in the GSM SEC Documents prior to the date of this Agreement. With respect to the GSM Benefit Plans, maintainedno event has occurred and, sponsored to the Knowledge of GSM, there exists no condition or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that set of circumstances which could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliateresult in a GSM Material Adverse Effect.
(d) There are no pending or, Each GSM Benefit Plan which is intended to the knowledge qualify under Section 401(a) of the CompanyCode has either received a favorable determination letter or opinion letter from the IRS as to its qualified status, threatened Actions (other than routine benefit claims and proceedings each trust established in connection with respect any GSM Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and to GSM’s Knowledge no fact or event has occurred that could adversely affect the qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary status of any such Company GSM Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice the exempt status of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)such trust.
(e) Except as set forth on Section 3.10(e) of has not had or would not reasonably be expected to have, individually or in the Company Disclosure Scheduleaggregate, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law thata GSM Material Adverse Effect, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company all GSM Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside the United States (i) have been maintained in accordance with all applicable requirements, (ii) if they are intended to qualify for special tax treatment, meet all the requirements for such treatment, and (iii) 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.
(f) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a GSM Material Adverse Effect: (i) to GSM’s Knowledge there has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) other than a transaction that is exempt under a statutory or administrative exemption with respect to any GSM Benefit Plan, and (ii) no Proceeding has been brought, or to the Knowledge of GSM is threatened, against or with respect to any GSM Benefit Plan, including any audit or inquiry by the IRS or United StatesStates Department of Labor (other than for routine benefits claims).
(g) No GSM Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (“Multiemployer Plan”) or other pension plan subject to Title IV of ERISA or the minimum funding requirements of Section 302 of ERISA or Section 412 of the Code and none of GSM or any ERISA Affiliate has maintained, sponsored or contributed to or been required to contribute to a Multiemployer Plan or other pension plan subject to Title IV of ERISA. Except for such instances which are not reasonably expected to result in a GSM Material Adverse Effect, none of GSM or any of its Subsidiaries has received any notification that any such plan is in reorganization (within the meaning of Section 4241 of ERISA), has been terminated, is insolvent (within the meaning of Section 4245 of ERISA) or is in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA). No material liability under Title IV of ERISA has been incurred by GSM or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to GSM or any ERISA Affiliate of incurring or being subject (whether primarily, jointly or secondarily) to a material liability thereunder. None of GSM or any of its Subsidiaries has incurred any material withdrawal liability under §4201 of ERISA.
(h) No amount that could be received (whether in cash or property or the vesting of property), as a result of the consummation of the transactions contemplated by this Agreement (alone or in conjunction with any other event, including any termination of employment), by any employee, officer or director of GSM or any of its Subsidiaries who is a “disqualified individual” (as such term is defined in proposed Treasury Regulations Section 1.280G-1) under any GSM Benefit Plan could be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code). GSM has delivered to FA, with respect to each disqualified individual with respect to GSM or any of its Subsidiaries that could reasonably be expected to receive any excess parachute payment, (i) such person’s name, title and a reasonable estimate of such person’s “base amount” (as defined in Section 280G(b)(3) of the Code) and (ii) a reasonable estimate of the aggregate present value of the “parachute payments” (as defined in Section 280G(b)(2) of the Code) such person could receive.
(i) Except as required by Law, no GSM Benefit Plan provides health, medical, life insurance or other welfare benefits with respect to current or former employees (or any of their beneficiaries) of GSM or any of its Subsidiaries after retirement or other termination of employment (other than coverage or benefits (i) required to be provided under Part 6 of Title I of ERISA or Section 4980B(f) of the Code, or any other applicable Law, or (ii) the full cost of which is borne by the current or former employee (or any of their beneficiaries)).
(j) The consummation of the Transactions will not (i) entitle any employee to a bonus, severance or change in control payment, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits, increase the amount payable or trigger any other material obligation pursuant to any of the GSM Benefit Plans or (iii) result in any breach or violation of, or default under, or limit GSM’s right to amend, modify or terminate, any GSM Benefit Plan.
(k) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a GSM Material Adverse Effect, each GSM Benefit Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and all IRS guidance promulgated thereunder, to the extent such section and such guidance have been applicable to such GSM Benefit Plan. There is no agreement, plan, Contract or other arrangement to which GSM is a party or by which it is otherwise bound to compensate any Person in respect of Taxes pursuant to Section 409A or 4999 of the Code.
Appears in 2 contracts
Samples: Business Combination Agreement (Globe Specialty Metals Inc), Business Combination Agreement (Globe Specialty Metals Inc)
Employee Benefit Plans. (ai) Section 3.10(a5.02(m)(i) of the Company CMS Disclosure Schedule contains a correct true and complete list of all material Company Benefit Plans each bonus, deferred compensation, incentive compensation, stock purchase, stock option, employment or consulting, severance pay or benefit, retention, change in control, savings, medical, life or other insurance, vacation, welfare benefit, fringe benefit, cafeteria, profit-sharing or pension benefit plan, program, agreement or arrangement, and material Company Benefit Arrangementseach other employee benefit or compensation plan, program, agreement or arrangement, sponsored, maintained or contributed to or required to be contributed to by CMS or any of its Subsidiaries, or by any trade or business, whether or not incorporated, that together with CMS or any of its Subsidiaries would be deemed a “single employer” under Section 414 of the Code (an “ERISA Affiliate”) or as to which CMS, any of its Subsidiaries, or any ERISA Affiliate has, or may have, any liability or obligation, contingent or otherwise, whether written or oral and whether legally binding or not (collectively, the “CMS Plans”). The Company Neither CMS, any of its Subsidiaries, nor any ERISA Affiliate has made any formal plan or commitment, whether legally binding or not, to create any additional plan, modify or change any existing CMS Plan that would affect any current or former employee, director or other service provider of or to CMS, any of its Subsidiaries, or any ERISA Affiliate.
(ii) With respect to each of the CMS Plans, CMS will, a reasonable period prior to Closing, make available to Parent Customers true and complete and correct copies of each of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicabledocuments: (i) the CMS Plan, the related trust agreement (if any), any amendments to such CMS Plan or trust agreement), and, in the case of the Employee Stock Ownership Plan of CMS Bancorp, Inc. (the “ESOP”), all plan documents, trust documents, insurance contracts, service provider agreements and amendments theretoESOP loan documentation; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangementthe three most recent annual reports, actuarial reports, and financial statements, if any; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries description, together with each summary of material modifications theretomodifications, required under ERISA with respect to such CMS Plan, and all material employee communications relating to such CMS Plan; (viiv) the most recent determination letter or opinion letter received from the IRS with respect to each CMS Plan that is intended to be qualified under Section 4.01(a) of the Code; and (v) all material notices communications to or other communications received from the IRSIRS or any other governmental or regulatory authority relating to each CMS Plan.
(iii) Except as Previously Disclosed, Department no liability under Title IV of LaborERISA has been incurred by CMS, any of its Subsidiaries, or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to CMS, any Subsidiary of CMS or any ERISA Affiliate of incurring a liability under such Title. Except as Previously Disclosed, no CMS Plan subject to Section 412, 430, 431 or 432 of the Code or Section 302, 303, 304 or 305 of ERISA has (i) incurred an accumulated funding deficiency, whether or not waived, or (ii) been, is, or would be (if the provisions of Section 430 applied to such CMS Plan) in “at-risk status.” None of the assets of CMS, any of its Subsidiaries, or any ERISA Affiliate are subject to any lien arising under ERISA or Subchapter D of Chapter 1 of the Code, and no condition exists that presents a material risk of any such lien arising.
(iv) Neither CMS nor any of its Subsidiaries, nor any ERISA Affiliate, nor any of the CMS Plans, nor any trust created thereunder, nor, to the knowledge of CMS, any trustee or administrator thereof has engaged in a transaction in connection with which CMS, any of its Subsidiaries, any ERISA Affiliate, any of the CMS Plans or any such trust could (either directly or pursuant to any contractual indemnification or contribution obligation protecting any fiduciary, insurer or service provider with respect to any CMS Plan), be subject to any civil liability or penalty pursuant to Title I of ERISA, a tax imposed pursuant to Chapter 43 of the Code, or any other Governmental Authority on liability.
(v) All contributions required to have been made under the terms of each CMS Plan or after January 1pursuant to ERISA and the Code have been timely made and all obligations in respect of each CMS Plan have been properly accrued and reflected in the financial statements in the CMS SEC Documents.
(vi) The only CMS Plan that is subject to Title IV of ERISA is the Community Mutual Savings Bank Retirement Income Plan (the “Pension Plan”). There has been no “reportable event” within the meaning of Section 4043 of ERISA which required a notice to the PBGC which has not been fully and accurately reported in a timely fashion, 2014; as required, or which, whether or not reported, would constitute grounds for the PBGC to institute involuntary termination proceedings with respect to any CMS Plan that is subject to Title IV of ERISA, other than any reportable event occurring by reason of the transactions contemplated by this Agreement.
(vii) required notices None of the CMS Plans is, and neither CMS, nor any of its Subsidiaries, nor any ERISA Affiliate has within the last six years contributed to or other written communications had an obligation to employees; and contribute to or incurred any liability in respect of, any “multiemployer plan” (as defined in Section 3(37) of ERISA), a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), or a single employer plan that has two or more contributing sponsors, at least two of whom are not under common control, within the meaning of Section 4063(a) of ERISA.
(viii) employee manuals or handbooks containing personnel or employee relations policies.
Except as Previously Disclosed, each CMS Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code is so qualified (band each corresponding trust is exempt under Section 501 of the Code) Each Qualified Plan and has received a favorable determination letter, or is the subject of a favorable determination letter, opinion letter, or advisory or opinion letter as from the IRS relating to its qualification, issued by the Internal Revenue Service most recently completed IRS remedial amendment period cycle (the “IRSRAP Cycle”) to the effect that such plan is qualified and the trust related applicable thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, covering all of the Codeapplicable provisions on the IRS cumulative list of covered qualification requirements for such RAP Cycle, and, and to the knowledge of the CompanyCMS, no act or omission in the operation of such plan nothing has occurred that could would reasonably be expected to adversely affect its the qualified status of any CMS Plan (or the exempt status of any related trust) or require the filing of a submission under the IRS’s employee plans compliance resolution system (“EPCRS”) or the taking of other corrective action pursuant to EPCRS in order to maintain such qualified (or exempt) status. No CMS Plan is the subject of any pending correction or application under EPCRS.
(ix) Each Company Benefit Plan and each Company Benefit Arrangement of the CMS Plans that is intended to satisfy the requirements of Section 125, 423 or 501(c)(9) of the Code satisfies such requirements. Each of the CMS Plans has been operated and administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, but not limited to ERISA and the Code.
(x) Except as Previously Disclosed, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect no payment or benefit paid or provided, or to each Company Benefit Plan and Company Benefit Arrangementbe paid or provided, (i) no non-exempt transactions prohibited by Code Section 4975 to current or ERISA Section 406 have occurred and (ii) no act former employees, directors or omission has occurred that could reasonably be expected other service providers of or to have a Material Adverse Effect. Neither the Company nor CMS, any of its Subsidiaries is liable Subsidiaries, (including pursuant to this Agreement) will fail to be deductible for any penalty federal income tax purposes under Section 162(m) or excise taxes assessable under ACASection 280G of the Code. Each individual classified as an independent contractor or other non-employee classification by the Company Person who performs services for CMS or any of its Subsidiaries Subsidiaries, has been been, and is, properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except by CMS or the Subsidiary as could not reasonably be expected to have a Material Adverse Effectan employee or independent contractor.
(cxi) Neither There are no claims pending, or, to the Company nor knowledge of CMS, threatened or anticipated (other than routine claims for benefits) against or involving any CMS Plan, the assets of any CMS Plans or against CMS, any of its Subsidiaries hasSubsidiaries, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries ERISA Affiliate with respect to any Pension CMS Plan. There is no judgment, decree, injunction, rule or order of any Governmental Authority or arbitrator outstanding against or in favor of any CMS Plan maintained by an ERISA Affiliate.
or any fiduciary thereof (d) other than rules of general applicability). There are no pending or, to the knowledge of the CompanyCMS, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans audits or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) investigations by any Governmental Authority (including the IRS and the Department of Labor)involving any CMS Plan.
(exii) Except Each CMS Plan that is a “group health plan” (as set forth on defined in Section 3.10(e5000(b)(1) of the Company Disclosure Schedule, no Company Benefit Plan Code or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result Title I of the Transactions or upon related, concurrent, or subsequent employment termination, would ERISA) has been operated in compliance in all material respects with (i) increase, accelerate the group health plan continuation coverage requirements of Section 4980B of the Code and Sections 601 through 608 of ERISA (“COBRA Coverage”) or vest any compensation or benefitsimilar state Law, (ii) require severanceSection 4980D of the Code, termination or retention payments or and (iii) forgive Title I of ERISA, in each case to the extent applicable. Except as Previously Disclosed, no CMS Plan or other written or oral agreement exists which obligates CMS to provide benefits (whether or not insured) to any indebtednesscurrent or former employee, consultant or other service provider of or to CMS following such current or former employee’s or consultant’s termination of employment or consultancy with CMS, other than (i) COBRA Coverage or coverage mandated by state Law, or (ii) death benefits or retirement benefits under any “employee pension benefit plan” (as defined in Section 3(2) of ERISA). No Company Benefit CMS Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A funded through a “welfare benefit fund” as defined in Section 419 of the Code.
(fxiii) Each CMS Plan may be amended or terminated without liability to CMS or any of its Subsidiaries, other than liability for accrued benefits through the date of the amendment or termination and administrative costs of amending or terminating the CMS Plan. Except as set forth on Section 3.10(f) Previously Disclosed, neither the execution of this Agreement, nor the consummation of the Company Disclosure Scheduletransactions contemplated hereby, no Company Benefit Plan will (either alone or Company Benefit Arrangement contains together with any provision other event) result in or is subject a precondition to (i) any Law thatcurrent or former employee, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA director or other applicable Laws.
(g) Neither the Company nor service provider of or to CMS or any of its Subsidiaries hasbecoming entitled to severance pay or any similar payment, within six (6ii) years prior to the date acceleration of this Agreement, maintained, sponsoredthe time of payment or vesting of, or been required to contribute an increase in the amount of, any compensation due to any “multiple employer welfare arrangement” as defined in Section 3(40current or former employee, director or other service provider of or to CMS or any of its Subsidiaries, or (iii) the renewal or extension of ERISAthe term of any agreement regarding the compensation of any current or former employee, director or other service provider of or to CMS or any of its Subsidiaries.
(hxiv) The Company Benefit Plans To the extent that any CMS Plan is or ever has been a “non-qualified deferred compensation plan” within the meaning of Section 409A of the Code and Company Benefit Arrangements have associated Treasury Department guidance, such CMS Plan was operated in good faith compliance with Section 409A of the Code prior to January 1, 2009, and has been documented and administered operated in accordance compliance with Section 409A of the Code in all material respectsrespects since January 1, 2009. None of the transactions contemplated by this Agreement will result in a violation of Section 409A of the Code.
(ixv) Neither the Company nor Except as Previously Disclosed, no CMS Plan subject to Title I of ERISA holds any “employer security” or “employer real property” (each as defined in Section 407(d) of its Subsidiaries maintains ERISA).
(xvi) All workers’ compensation benefits paid or has maintained any Benefit Plan or Benefit Arrangement covering payable to any current or former employee employee, director or other service provider of the Company or to CMS or any of its Subsidiaries that is or was subject are fully insured by a third party insurance carrier.
(xvii) Each CMS Plan has been operated and administered in all material respects with the requirements of The Patient Protection and Affordable Care Act (Public Law 111-148) and the Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), in each case as amended, to the Laws of any jurisdiction outside of the United Statesextent applicable.
Appears in 2 contracts
Samples: Merger Agreement (Customers Bancorp, Inc.), Merger Agreement (CMS Bancorp, Inc.)
Employee Benefit Plans. (a) Section 3.10(a) of the Company Disclosure Schedule 7.16 contains a correct true and complete list of all material Company pension, profit sharing, retirement, deferred compensation, stock purchase, stock option, incentive, bonus, vacation, severance, disability, hospitalization, medical insurance, life insurance and other employee benefit plans, programs or arrangements, maintained by either Seller immediately prior to the Transfer Time, or under which either Seller had any obligations (other than obligations to make current wage or salary payments or sales commissions terminable on notice of 30 days or less) in respect of, or which otherwise cover, any of the officers or employees of either Seller, immediately prior to the Transfer Time, or their beneficiaries (hereinafter individually referred to as a "Employee Benefit Plans Plan" and material Company collectively referred to as the "Employee Benefit ArrangementsPlans"). The Company has Sellers have delivered or made available to Parent Purchaser true and complete and correct copies of all documents, as they may have been amended to the following documents with respect date hereof, embodying or relating to each material Company the Employee Benefit Plans. Except as provided therein, no Employee Benefit Plan and material Company Benefit Arrangementlisted in Schedule 7.16 is funded through a trust that is intended to be exempt from taxation -23- 24 under Section 501(c) of the Internal Revenue Code of 1986, to the extent applicable: (i) all plan documentsas amended, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; successor thereto (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies"Code").
(b) Each Qualified Except as set forth in Schedule 7.16, (i) Sellers have made all payments due from it to date under or with respect to each Employee Benefit Plan, and all amounts properly accrued to date as liabilities of Sellers under or with respect to each Plan has received a favorable determination letter, or is for the subject current plan years have been properly recorded on the books of a favorable advisory or opinion letter as Sellers; (ii) Sellers have performed all material obligations required to its qualification, issued be performed by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes it under Sections 401(a) and 501(a), respectively, of the Codeany Employee Benefit Plan, and, to the knowledge of the CompanySellers, no act other party is in default thereunder or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered violation thereof; (iii) Sellers are in compliance in all material respects with the requirements prescribed by all statutes, orders or governmental rules or regulations applicable to the Employee Benefit Plans, including, without limitation, ERISA and the Code; and (iv) neither of the Sellers nor, to the knowledge of Sellers, any other "disqualified person" or "party in accordance with its terms interest" (as defined in Section 4975 of the Code and with all applicable Laws, including Section 3 of ERISA, respectively) has engaged in any "prohibited transaction," as such term is defined in Section 4975 of the Code or Section 406 of ERISA, which would subject any Employee Benefit Plan or its related trust, Sellers, the Company or any officer, partner, director, member or employee of Sellers, the Company, or any trustee, administrator or other fiduciary of any Employee Benefit Plan to any material liability under Section 4975 of the Code or Section 502(i) of ERISA or any material liability under Part 4 of Title I of ERISA; (v) there are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of Sellers, threatened, against any Employee Benefit Plan or against the assets of any Plan; (vi) no Employee Benefit Plan, other than any Employee Benefit Plan that is a multi-employer plan within the meaning of Section 3(37) of ERISA, is subject to Part III of Subtitle B of Title I of ERISA or Section 412 of the Code; (vii) no Employee Benefit Plan, other than any Employee Benefit Plan that is a multi-employer plan, as defined in paragraph (vi) above is or was subject to Title IV of ERISA and Sellers have not incurred any liability to the Patient Protection and Affordable Care Act Pension Benefit Guaranty Corporation (“ACA”"PBGC").
(c) and Except as set forth in Schedule 7.16, there are no multi-employer plans, within the Health Insurance Portability and Accountability Actmeaning of Section 3(37) of ERISA, to which Sellers are or, at any time since their formation, have been required to make any contributions to under which either Seller is subject to any material liability, actual or contingent. With respect to each Company Benefit Plan and Company Benefit Arrangement, multi-employer plan listed in Schedule 7.16 that is or was subject to Title IV of ERISA (i) there has been no non-exempt transactions prohibited by Code complete withdrawal or partial withdrawal of either Seller, as defined in Section 4975 4201, 4203 and 4205 of ERISA and neither Seller has received any notice of withdrawal liability pursuant to Sections 4202 or ERISA Section 406 have occurred and 4219 of ERISA, (ii) neither Seller has received, nor, to the knowledge of the Sellers, has any other employer received, any notice pursuant to Section 4242 of ERISA that the plan is in reorganization, and (iii) there is no act other material fact known to Sellers or omission the Owners relating to the withdrawal liability of Sellers which has occurred not been disclosed on Schedule 7.16, including any material fact relating to the existence of an accumulated funding deficiency, as defined in Section 412 of the Code or a determination that could reasonably be expected the plan is insolvent, in reorganization or the subject of termination proceedings. The aggregate contingent withdrawal liability of Sellers with respect to have a Material Adverse Effect. Neither the Company nor any multi-employer plans listed in Schedule 7.16 does not exceed, as of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangementdate hereof, except as could not reasonably be expected to have a Material Adverse Effect$25,000.
(cd) Neither the Company nor any The current value of its Subsidiaries hasall vested Accrued Benefits under all Employee Benefit Plans, within six (6) years prior to other than multi-employer plans, as of the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon did not exceed the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge then Current Value of the Company, threatened Actions (other assets of such Plans allocable to such vested Accrued Benefits by more than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement)$25,000. No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) For purposes of the Company Disclosure Schedulerepresentation in the preceding sentence, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except term "Current Value" has the same meaning as set forth on Section 3.10(fin section 4062(b)(1) of ERISA and the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of term "Accrued Benefit" has the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined meaning specified in Section 3(40) 3 of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.
Appears in 2 contracts
Samples: Purchase Agreement (Penske Motorsports Inc), Purchase Agreement (Penske Motorsports Inc)
Employee Benefit Plans. (a) Section 3.10(aExcept as set forth on Schedule 2.17A, neither Firstbank nor any Firstbank Subsidiary is a party to any existing employment, management, consulting, deferred compensation, change-in-control or other similar contract. Schedule 2.17A lists all pension, retirement, supplemental retirement, savings, profit sharing, stock option, stock purchase, stock ownership, stock appreciation right, deferred compensation, consulting, bonus, medical, disability, workers' compensation, vacation, group insurance, severance and other material employee benefit, incentive and welfare policies, contracts, plans and arrangements, and all trust agreements related thereto, maintained (currently or at any time in the last five years) by or contributed to by Firstbank or any Firstbank Subsidiary in respect of any of the Company Disclosure Schedule contains a correct and complete list present or former directors, officers, or other employees of all material Company Benefit Plans and material Company Benefit Arrangementsand/or consultants to Firstbank or any Firstbank Subsidiary (collectively, "Firstbank Employee Plans"). The Company Firstbank has made available to Parent complete and correct copies of furnished Mercantile with the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicableFirstbank Employee Plan: (i) a true and complete copy of all plan documentsmaterial written documents comprising such Firstbank Employee Plan (including amendments and individual agreements relating thereto) or, trust documentsif there is no such written document, insurance contracts, service provider agreements an accurate and amendments theretocomplete description of the Firstbank Employee Plan; (ii) written descriptions of the most recent Form 5500 or Form 5500-C (including all material non-written agreements relating to any such plan or arrangementschedules thereto), if applicable; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, most recent financial statements and any related actuarial reports, if any; (iv) nondiscrimination testing results for the last three (3) yearssummary plan description currently in effect and all material modifications thereof, if any; and (v) the most recent summary IRS determination letter, if any. Without limiting the generality of the foregoing, Firstbank has furnished Mercantile with true and complete copies of each form of stock option grant or stock option agreement that is outstanding under any stock option plan description of Firstbank or any Firstbank Subsidiary.
(b) Except as set forth on Schedule 2.17B, all Firstbank Employee Plans have been maintained and summaries operated materially in accordance with their terms and with the material requirements of material modifications theretoall applicable statutes, orders, rules and final regulations, including without limitation ERISA and the Code. All contributions required to be made to Firstbank Employee Plans have been made.
(c) With respect to each of the Firstbank Employee Plans which is a pension plan (as defined in Section 3(2) of ERISA) (the "Pension Plans"), except as set forth on Schedule 2.17C: (i) each Pension Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined to be so qualified by the IRS and, to the knowledge of Firstbank, such determination letter may still be relied upon, and each related trust is exempt from taxation under Section 501(a) of the Internal Revenue Code of 1986, as amended, together with the Treasury regulations thereunder (the "IRC"); (viii) the actuarial present value of all material notices benefits under each Pension Plan which is subject to Title IV of ERISA, valued using the assumptions in the most recent actuarial report, did not, in each case, as of the last applicable annual valuation date (as indicated on Schedule 2.17A), exceed the value of the assets of the Pension Plan allocable to such vested or other communications received from accrued benefits; (iii) to the IRSbest knowledge of Firstbank, Department there has been no "prohibited transaction," as such term is defined in Section 4975 of Laborthe Code or Section 406 of ERISA, which could subject any Pension Plan or associated trust, or Firstbank or any other Governmental Authority Firstbank Subsidiary, to any material tax or penalty; (iv) except as set forth on Schedule 2.17C, no Pension Plan subject to Title IV of ERISA or any trust created thereunder has been terminated, nor have there been any "reportable events" with respect to any Pension Plan, as that term is defined in Section 4043 of ERISA for which the 30-day notice requirement has not been waived on or after January 1, 2014; (vii) required notices or other written communications to employees1993; and (viiiv) employee manuals no Pension Plan or handbooks containing personnel any trust created thereunder has incurred any "accumulated funding deficiency", as such term is defined in Section 302 of ERISA (whether or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter not waived). Except as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Companyset forth on Schedule 2.17C, no act or omission Pension Plan is a "multiemployer plan" as that term is defined in the operation Section 3(37) of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on that is described in Section 3.10(e4063(a) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would ERISA (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United States.a
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Mercantile Bancorporation Inc), Agreement and Plan of Reorganization (Firstbank of Illinois Co)
Employee Benefit Plans. Except as described in the Company Filed Reports (a) and subsequent financial and actuarial statements and reports furnished to Parent or its agents prior to the date hereof), as described in Section 3.10(a) 3.16 of the Company Disclosure Schedule contains a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit ArrangementLetter or as could not, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan individually or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Lawsaggregate, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Company Material Adverse Effect. Neither , (a) all employee benefit plans or programs maintained for the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee employees or directors of the Company or any of its Subsidiaries that are sponsored, maintained or contributed to by the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability, including without limitation any such plan that is an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA")(the "COMPANY BENEFIT PLANS"), are in compliance with all applicable requirements of Law, including ERISA and the Code, (b) neither the Company nor any of its Subsidiaries has any liabilities or was subject obligations with respect to any such employee benefit plans or programs, whether accrued, contingent or otherwise, other than the obligations arising in the ordinary course of the operation or administration of such plans or routine claims for benefits under such plans, nor to the Laws Knowledge of the Company are any such liabilities or obligations expected to be incurred, and (c) neither the Company nor any of its Subsidiaries is a party to any contract or other arrangement under which, after giving effect to the Offer or the Merger, Parent or the Surviving Corporation would be obligated to make any "parachute" payment within the meaning of the Code. Except as described in Section 3.16 of the Company Disclosure Letter, the execution of, and performance of the transactions contemplated by, this Agreement will not (either alone or upon the occurrence of any jurisdiction outside additional or subsequent events) constitute an event under any benefit plan, program, policy, arrangement or agreement or any trust, loan or funding arrangement that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee. The Company has made available to Parent true, complete and correct copies of the United Statesplan documents for the Company Benefit Plans.
Appears in 2 contracts
Samples: Merger Agreement (Fingerhut Companies Inc), Merger Agreement (Federated Department Stores Inc /De/)
Employee Benefit Plans. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedule contains Letter sets forth a correct correct, accurate and complete list of all material each Employee Benefit Plan which is now, or was within the past six years, maintained, sponsored or contributed to by the Company or any of its Subsidiaries or under which the Company or any of its Subsidiaries has, or has had within the past six years, any obligation or liability, whether actual or contingent. Each Employee Benefit Plan listed in such section of the Company Disclosure Letter is hereinafter referred to as a “Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policiesPlan”.
(b) Each Qualified Plan With respect to each Company Benefit Plan, the Company has received delivered or made available to Parent correct, accurate and complete copies of (A) all written documents comprising or relating to such plan (including amendments, individual agreements, investment management agreements, service agreements, trust agreements, insurance contracts and other funding agreements), and in the case of an unwritten Company Benefit Plan, a favorable determination written description thereof, (B) all material communications and summaries pertaining to such plan which have been provided to participants and the current summary plan description, if any is required by Law, including any summary of material modifications thereto, (C) the annual reports, if any, for the three most recent years required to be filed, (D) the most recent actuarial report and audited financial statement, if any, (E) the most recent determination, opinion, advisory or notification letter, or is the subject of a favorable advisory or opinion letter as to its qualificationif any, which has been issued by the Internal Revenue Service IRS or other Governmental Entity and which covers such plan, (F) any employee handbook which includes a description of such plan, and (G) all filings made with any Governmental Entity to correct any failure with respect to such plan.
(c) Except as set forth in Section 4.10(c) of the Company Disclosure Letter, no Company Benefit Plan, and no Employee Benefit Plan which has ever been maintained, administered, sponsored or contributed to by the Company or any Company ERISA Affiliate, is or ever was (A) a “IRSdefined benefit plan”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, as defined in Section 414 of the Code, anda “multiemployer plan”, as defined in Section 3(37) of ERISA, a “multiple employer plan”, as described in Section 413(c) of the Code or a “multiple employer welfare arrangement”, as defined in Section 3(40) of ERISA, (B) subject to the knowledge funding requirements of Section 302 of ERISA or Section 412 of the CompanyCode, (C) subject to Title IV of ERISA, (D) a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code, or (E) established or maintained outside of the United States or a plan or arrangement which provides benefits to non-resident aliens (with respect to the U.S.) with no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. U.S. source income.
(d) Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws. All contributions required to be made to, including ERISAor with respect to, any Company Benefit Plan as of the Codedate of this Agreement by the terms of such plan, by contract or under applicable Law have been timely and fully made or, if not yet due, have been properly reflected on the Patient Protection Company’s balance sheet filed or incorporated by reference in the Company SEC Filings prior to the date hereof. All payments required to be made by, or with respect to, any Company Benefit Plan as of the date of this Agreement by the terms of such plan, by contract or under applicable Law have been timely and Affordable Care Act (“ACA”fully made. Except as set forth in Section 4.10(d) and of the Health Insurance Portability and Accountability Act. With Company Disclosure Letter, with respect to each Company Benefit Plan and which is funded (or is required to be funded), the value of the assets of such plan are at least equal to the liabilities of such plan. There have been no material violations of any reporting or disclosure requirements under any applicable Law with respect to any Company Benefit ArrangementPlan, including any requirement to file notices, returns, reports and similar documents with any Governmental Entity or to provide notices, returns, reports and similar documents to any participant. The Company has no unpaid material liability (iother than for routine contributions or benefit payments), or any unpaid material penalty or tax, with respect to any Company Benefit Plan or other Employee Benefit Plan, and no event, omission or error has occurred and, to the knowledge of the Company there exists no condition or set of circumstances, which could cause the Company to become subject to any such material liability, penalty or tax.
(e) no non-exempt transactions prohibited by Code All contributions which have been made to any Company Benefit Plan have been fully deductible for income tax purposes under Section 4975 162 or ERISA Section 406 have occurred and (ii) no act 404 of the Code, or omission under another applicable provision of Law. No event has occurred that will or could reasonably be expected subject any Company Benefit Plan to have Tax under Section 511 of the Code.
(f) Each Company Benefit Plan which is intended to qualify under Section 401(a) of the Code is so qualified, and is covered by a Material Adverse Effectdetermination, opinion, advisory or notification letter from the IRS which indicates its qualified status and on which any employer which has adopted such plan may currently rely. Neither To the knowledge of the Company, no event, omission or error has occurred which could adversely affect the qualified status of any such Company Benefit Plan. Except as set forth in Section 4.10(f) of the Company nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under Disclosure Letter, each Company Benefit Plan established or maintained outside of the United States has obtained from each government having jurisdiction with respect to such plan any required determinations that such plan is in compliance with the applicable laws and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effectregulations of such government.
(cg) Neither the Company nor any of its Subsidiaries has, within six No litigation or claim (6other than routine claims for benefits) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no other Legal Proceeding is pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including Plan. To the knowledge of the Company, there is no basis for any such litigation, claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor)Legal Proceeding to be brought.
(eh) Except as set forth on in Section 3.10(e4.10(h) of the Company Disclosure ScheduleLetter or in the Company SEC Filings, no employee, officer, director or independent contractor of the Company shall accrue or receive any severance pay or similar pay, or any additional benefit, additional credit for service, accelerated vesting or accelerated right to payment of any benefit, under any Company Benefit Plan Plan, or Company Benefit Arrangement contains under any provision other arrangement or is subject to any Law thatagreement with the Company, as a result of the Transactions or upon related, concurrentexecution and delivery of, or subsequent employment terminationthe transactions contemplated by, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtednessthis Agreement. No payment made or contemplated under any Company Benefit Plan Plan, or Company Benefit Arrangement contains any provision by the Company, constituted, or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections constitute, an “excess parachute payment” within the meaning of Section 280G or 409A of the Code.
(fi) Except as set forth on in Section 3.10(f4.10(i) of the Company Disclosure ScheduleLetter, no Company Benefit Plan provides, and the Company has not promised and is not under any agreement to provide, any post-employment or post-retirement health, disability, death benefit or other welfare benefit to any employee.
(j) Except as set forth in Section 4.10(j) of the Company Disclosure Letter, no individual has been required to include any amount in gross income under Section 409A of the Code (A) because any Company Benefit Arrangement contains any provision Plan has failed to meet, or is subject has not been operated in compliance with, a requirement of Section 409A(a), or (y) by reason of the application of Section 409A(b) to any Law thatplan, as a result trust or arrangement of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G Company.
(k) To the knowledge of the CodeCompany, no award of equity, equity rights or an option to purchase stock or any other Equity Interest has been made under any Company Benefit Plan (including, without limitation, the Company Options) which has been backdated, altered or granted with an effective date which is other than the date on which the award was actually made and which would have a Material Adverse Effect.
(l) The Company has expressly reserved to itself the right to amend, terminate or otherwise discontinue each Company Benefit Plan. The Company has no express or implied commitment to (A) modify, change or terminate any Company Benefit Plan, other than with respect to a modification, change or termination required by ERISA or the Code or other applicable Law or (B) establish any new Employee Benefit Plan for its current or former employees, officers, directors or independent contractors. Neither the execution or delivery of, nor the occurrence of the transactions contemplated by, this Agreement shall result in any increase in the contributions required to be made to any Company Benefit Plan. No Company Benefit Plan has invested any assets in stock or Company Benefit Arrangement provides post-employment medical benefits except as required any other security issued by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that Company ERISA Affiliate.
(m) No Company ERISA Affiliate has incurred, or is reasonably likely to incur, any material liability, fine, penalty or was subject tax with respect to any Employee Benefit Plan for which the Laws of any jurisdiction outside Company could be liable after the completion of the United Statestransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Inhibitex, Inc.), Merger Agreement (Fermavir Pharmaceuticals, Inc.)
Employee Benefit Plans. (a) Section 3.10(a) 3.10 of the Company Disclosure BioLite Schedule of Exceptions contains a correct true and complete list of all each BioLite Plan (as defined below). As used herein, the term “BioLite Plan” means each material Company Benefit Plans employee benefit plan (within the meaning of Section 3(3) of the Employment Retirement Income Security Act of 1974 (“ERISA”)), including each “employee pension benefit plan” (as defined in Section 3(2) of ERISA), and each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), each material Company Benefit Arrangementsemployee benefit plan maintained outside the United States, and each other material plan, arrangement or policy (written or oral) to provide benefits, other than salary or commissions, as compensation for services rendered, including, without limitation, employment agreements, executive compensation agreements, incentive arrangements, salary continuation, stock option, stock grant or stock purchase rights, phantom rights, deferred compensation, bonus, severance policies or agreements, retention policies or agreements, change in control policies or agreements, fringe benefits or other employee benefits, in each case maintained or sponsored by BioLite or any of its Subsidiaries or to which BioLite or any of its Subsidiaries contributes to or for which BioLite or any of its Subsidiaries has or may have any liability, contingent or otherwise, either directly or as a result of a BioLite ERISA Affiliate, or any other plan, arrangement or policy mandated by applicable Law, for the benefit of any current, former or retired employee, officer, consultant, independent contractor or director of BioLite, its Subsidiaries or any BioLite ERISA Affiliate (collectively, the “BioLite Employees”). The Company BioLite has made available to Parent complete and correct BioKey copies of the following documents with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any documents constituting the BioLite Plans, the three most recently filed Forms 5500 for such plan or arrangement; BioLite Plans and financial statements attached thereto, all Internal Revenue Service (iiithe “IRS”) Form 5500 filings determination letters for the last BioLite Plans, all notices that were issued within the preceding three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from years by the IRS, Department of Labor, or any other Governmental Authority on or after January 1Body with respect to the BioLite Plans, 2014; (vii) required notices or other written communications to employees; and (viii) all employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) and all other material documents relating to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, BioLite Plans. For purposes of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISAthis Section 3.10, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor term BioLite includes any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangement, except as could not reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an BioLite ERISA Affiliate.
(d) There are no pending or. The term “BioLite ERISA Affiliate” means any person, to the knowledge of the Companythat together with BioLite, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to is or was at any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit or examination (or potential audit or examination) by any Governmental Authority (including the IRS and the Department of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, time treated as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification single employer under Sections 280G or 409A of the Code.
(f) Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other applicable Laws.
(g) Neither the Company nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored, or been required to contribute to any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(h) The Company Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A section 414 of the Code in all material respects.
(i) Neither the Company nor or section 4001 of ERISA and any general partnership of its Subsidiaries maintains which BioLite is or has maintained any Benefit Plan or Benefit Arrangement covering any current or former employee of the Company or any of its Subsidiaries that is or was subject to the Laws of any jurisdiction outside of the United Statesbeen a general partner.
Appears in 2 contracts
Samples: Merger Agreement (American BriVision (Holding) Corp), Agreement and Plan of Merger (American BriVision (Holding) Corp)
Employee Benefit Plans. (a) Each “employee benefit plan” within the meaning of Section 3.10(a3(3) of ERISA, and each other employee benefit plan, program, agreement, policy or arrangement, including, but not limited to, stock purchase, stock option or stock-based compensation, severance, employment, consulting, change-in-control, fringe benefit, bonus, incentive compensation, deferred compensation (including nonqualified deferred compensation), employee loan, sick leave, vacation pay, salary continuation, welfare benefit and pension benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the Company Disclosure Schedule contains future as a correct and complete list of all material Company Benefit Plans and material Company Benefit Arrangements. The Company has made available to Parent complete and correct copies result of the following documents transactions contemplated hereby or otherwise), whether written or oral, that HiSoft or any of its Subsidiaries maintains, sponsors, participates in or, is a party to or contributes to, in each case, with respect to each material Company Benefit Plan and material Company Benefit Arrangement, to the extent applicable: (i) all plan documents, trust documents, insurance contracts, service provider agreements and amendments thereto; (ii) written descriptions of all material non-written agreements relating to any such plan or arrangement; (iii) Form 5500 filings for the last three (3) years, including all schedules thereto, annual report, financial statements and any related actuarial reports; (iv) nondiscrimination testing results for the last three (3) years; (v) the most recent summary plan description and summaries of material modifications thereto; (vi) all material notices or other communications received from the IRS, Department of Labor, which HiSoft or any other Governmental Authority on or after January 1, 2014; (vii) required notices or other written communications to employees; and (viii) employee manuals or handbooks containing personnel or employee relations policies.
(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the Internal Revenue Service (the “IRS”) to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of the Company, no act or omission in the operation of such plan has occurred that could adversely affect its qualified status. Each Company Benefit Plan and each Company Benefit Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. With respect to each Company Benefit Plan and Company Benefit Arrangement, (i) no non-exempt transactions prohibited by Code Section 4975 or ERISA Section 406 have occurred and (ii) no act or omission has occurred that Subsidiaries could reasonably be expected to have any material current or reasonably anticipated future liability (each, a Material Adverse Effect. Neither “HiSoft Benefit Plan”) is disclosed in the Company HiSoft SEC Reports or listed in Section 4.12(a) of the HiSoft Disclosure Schedule.
(b) With respect to the HiSoft Benefit Plans, HiSoft has provided or made available to VanceInfo true and complete copies of (i) each HiSoft Benefit Plan (or, in each case, descriptions thereof for any unwritten HiSoft Benefit Plans) and any amendments thereto, (ii) each actuarial report, and (iii) all documents filed with and/or received from any Governmental Entity, in each case, as applicable.
(c) Except as set forth in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment becoming due to any HiSoft Employee under any of the HiSoft Benefit Plans or otherwise; (ii) increase any compensation or benefits due to any HiSoft Employee under any of the HiSoft Benefit Plans or otherwise; or (iii) result in any acceleration of the time of payment, funding or vesting of any compensation or benefits due to any HiSoft Employee under any HiSoft Benefit Plan or otherwise.
(d) Except as disclosed in the HiSoft SEC Reports and severance benefits provided for under applicable Law, neither HiSoft nor any of its Subsidiaries is liable maintain any HiSoft Benefit Plans providing for benefits in the nature of severance to any penalty HiSoft Employees. Except as would not, individually or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by in the Company or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Company Benefit Plan and Company Benefit Arrangementaggregate, except as could not reasonably be expected to have a HiSoft Material Adverse Effect, no HiSoft Benefit Plan provides welfare benefits, including, death or medical benefits (whether or not insured), beyond retirement or termination of service, other than coverage mandated solely by applicable Law.
(ce) Neither the Company With respect to each HiSoft Share Incentive Plan, neither HiSoft nor any of its Subsidiaries has, within six (6) years prior to the date of this Agreement, maintained, sponsored or been required to contribute to any Pension Plan. There are no current or contingent Liabilities that could reasonably be expected to be imposed upon the Company or any of its Subsidiaries with respect to any Pension Plan maintained by an ERISA Affiliate.
(d) There are no pending or, to the knowledge of the Company, threatened Actions (other than routine benefit claims and proceedings with respect to qualified domestic relations orders) relating to any Company Benefit Plans or Company Benefit Arrangements (including any such claim against any fiduciary of any such Company Benefit Plan or Company Benefit Arrangement). No Company Benefit Plan or Company Benefit Arrangement has received notice of an audit any notice, letter or examination (other written or potential audit or examination) by oral communications from any Governmental Authority (including the IRS and the Department Entity regarding any material non-compliance of Labor).
(e) Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, no Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments or (iii) forgive any indebtedness. No Company Benefit Plan or Company Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Codeemployee social benefits requirements.
(f) Except as set forth would not, individually or in the aggregate, reasonably be expected to have a HiSoft Material Adverse Effect, there are no pending or threatened Proceedings by or on Section 3.10(f) behalf of the Company Disclosure Scheduleany HiSoft Benefit Plan, no Company by any current or former employee or beneficiary covered under any such HiSoft Benefit Plan, as applicable, or otherwise involving any such HiSoft Benefit Plan (other than routine claims for benefits). Except as would not, individually or Company Benefit Arrangement contains any provision or is subject in the aggregate, reasonably be expected to any Law thathave a HiSoft Material Adverse Effect, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Company each HiSoft Benefit Plan or Company Benefit Arrangement provides post-employment medical benefits except as required by COBRA or other has been operated and administered in accordance with its terms and applicable LawsLaw.
(g) Neither Except as would not, individually or in the Company nor any of its Subsidiaries hasaggregate, within six reasonably be expected to have a HiSoft Material Adverse Effect: (6i) years prior each HiSoft Benefit Plan required to the date of this Agreementbe registered has been registered and has been maintained in good standing with applicable Governmental Entities; (ii) all contributions to, maintainedand payments from (other than payments to be made from a trust, sponsored, insurance contract or other funding medium) which may have been required to contribute be made in accordance with the terms of any such HiSoft Benefit Plan, and, when applicable, the Law of the jurisdiction in which such plan is maintained, have been timely made; (iii) all such contributions to the HiSoft Benefit Plans, and all payments under such plans, for any period ending before the Closing Date that are not yet, but will be, required to be made are properly accrued and reflected on the financial statements of the employer maintaining such plan; (iv) all reports, returns and similar documents with respect to any “multiple employer welfare arrangement” as defined HiSoft Benefit Plan required to be filed with any government agency or distributed to any HiSoft Benefit Plan participant have been duly and timely filed or distributed; and (v) each of the HiSoft Benefit Plans has obtained from the Governmental Entity having jurisdiction with respect to such plan any required determinations that such plan is in Section 3(40) compliance with the Laws and regulations of ERISAany such jurisdiction.
(h) The Company None of the HiSoft Benefit Plans and Company Benefit Arrangements have been documented and administered in accordance with Section 409A is subject to the U.S. Employee Retirement Income Security Act of the Code in all material respects1974, as amended.
(i) Neither the Company nor any of its Subsidiaries maintains or has maintained any No HiSoft Benefit Plan is a defined benefit pension plan or Benefit Arrangement covering a multiemployer plan and no HiSoft Employee participates in any current defined benefit pension plans or former employee of the Company multiemployer plans sponsored, or contributed to, by HiSoft or any of its Subsidiaries that is or was subject Affiliates.
(j) Other than pursuant to the Laws of HiSoft Share Incentive Plans, HiSoft is not obligated, pursuant to any jurisdiction outside of the United StatesHiSoft Benefit Plans or otherwise, to grant any options or other rights to purchase or acquire HiSoft Shares to any HiSoft Employees after the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (VanceInfo Technologies Inc.), Merger Agreement (HiSoft Technology International LTD)
