Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan. (ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof. (iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan. (iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA. (v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis. (vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees. (vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests). (viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan. (ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder. (x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future. (xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule. (xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Cardinal Financial Corp), Agreement and Plan of Reorganization (United Bankshares Inc/Wv)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Each Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan of NHP has been operated administered in compliance, in all material respects, with its terms, and administered is in compliance in all material respects in accordance with its terms and with applicable lawlaws, rules and regulations, (including, but without limitation, provisions relating to funding, filing, termination, reporting, disclosure and continuation coverage obligations pursuant to Title V of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA")). No Benefit Plan of NHP has been the subject of a "reportable event" (as defined in Section 4043 of ERISA) (other than a reportable event for which the 30 day notice requirement has been waived) and there have not limited tobeen any non-exempt "prohibited transactions" (as described in Section 4975 of the Code or in Part 4 of Subtitle B of Title I of ERISA) with respect to any Benefit Plan of NHP. There are no proceedings, ERISAsuits or material claims (other than routine claims for benefits) pending or, to the knowledge of NHP, threatened with respect to any Benefit Plan of NHP, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Actassets of any trust thereunder, or the Benefit Plan sponsor or the Benefit Plan administrator with respect to the design or operation of any regulations or rules promulgated thereunder, and all 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 madeBenefit Plan of NHP. Each Compensation and Benefit Plan that of NHP which is an “employee pension benefit plan” intended to be "qualified" within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related is so qualified, and any trust under created pursuant to any such Compensation and Benefit Plan of NHP is exempt from Federal income tax under Section 501(a) of the Code) from Code and the Internal Revenue Service (“IRS”) or the Compensation and IRS has issued each such Benefit Plan uses a prototype or volume submitter plan that favorable determination letter which is the subject of an IRS opinion or advisory letter, and Cardinal currently applicable. NHP is not aware of any circumstances that could adversely affect such qualification circumstance or that are likely to result in event which would jeopardize the revocation tax-qualified status of any existing favorable determination letter Benefit Plan of NHP or in not receiving a favorable determination letterthe tax-exempt status of any related trust, or would cause the imposition of any material liability, penalty or tax under ERISA or the Code with respect to any Benefit Plan of NHP. There is no No material pending or, liabilities to the knowledge or on behalf of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans participants (other than routine claims for benefits. Neither Cardinal nor any ), the IRS, the United States Department of its Subsidiaries has engaged in a transactionLabor, the Pension Benefit Guaranty Corporation or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal other Person or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would are reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) incurred as a result of the Codetermination of any Benefit Plan of NHP or otherwise that have not been satisfied in full or properly accrued on NHP's balance sheet as at December 31, and (y) has taken any action1996, or omitted to take any action, that has resulted, or would reasonably be expected to result, included in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) NHP SEC Reports. Except as set forth on SCHEDULE 4.11, neither NHP nor any of its subsidiaries maintains or is obligated to contribute to, or has ever maintained or been obligated to contribute to, a "multi-employer plan" (as such term is defined by Section 6.03(m)(viii4001(a)(3) of Cardinal’s Disclosure ScheduleERISA) or a "multiple employer plan" (within the meaning of Section 413(c) of the Code). Except as set forth in SCHEDULE 4.11 or in the NHP SEC Reports or as otherwise required by applicable law, neither NHP nor any of its subsidiaries maintains any retiree life and/or retiree health insurance plans which provide for continuing benefits or coverage for any employee or any beneficiary of an employee after such employee's termination of employment. Except as set forth in SCHEDULE 4.11 or in the NHP SEC Reports, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly will not (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (Aa) entitle any Employeeemployee of NHP or its subsidiaries to severance pay, Consultant unemployment compensation or Director any other payment, (b) accelerate the time of payment or vesting, or increase the amount of compensation due to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement such employee or (Cc) result in any material increase in benefits payable liability under any Compensation and Benefit PlanTitle IV of ERISA.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Apartment Investment & Management Co), Merger Agreement (Apartment Investment & Management Co)
Employee Benefit Plans. (i) On Sagebrush has disclosed in Section 6.03(m)(i4.10(d) of Cardinal’s the Sagebrush Disclosure ScheduleDocument and has delivered or made available to WSMP prior to the execution of this Agreement correct and complete copies, Cardinal has set forth a complete and accurate list in each case, of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thriftdeferred compensation, savingsstock option, employee stock ownership, stock bonusseverance pay, stock purchasevacation, restricted stockbonus and other incentive plans, stock optionall other written employee programs, severancearrangements and agreements, welfare all medical, vision, dental and other health plans, all life insurance plans and all other employee benefit plans and fringe benefit plans, survivor life insuranceincluding, split dollar or other life insurance without limitation, "employee benefit plan, employment or severance agreements and all similar practices, policies and arrangements plans" as that term is defined in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”Section 3(3) of Cardinal ERISA, currently adopted, maintained by, sponsored in whole or in part by or contributed to by Sagebrush or any Subsidiary thereof for the benefit of its Subsidiaries participates or employees, retirees, dependents, spouses, directors, independent contractors and other beneficiaries and under which employees, retirees, dependents, spouses, directors, independent contractors and other beneficiaries are eligible to which any such Employeesparticipate (collectively, Consultants or Directors are a party (the “Compensation and "Sagebrush Benefit Plans”"). Except as required by disclosed in Section 4.10(d) of the terms Sagebrush Disclosure Document, neither the execution and delivery of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly hereby will (i) result in any payment (including, without limitation, as a result of any termination of employment prior to severance, unemployment compensation, golden parachute or following the Effective Timeotherwise) reasonably be expected to (A) entitle any Employee, Consultant or Director becoming due to any payment (including severance pay or similar compensation) director or any increase in compensationemployee of Sagebrush from Sagebrush under any Sagebrush Benefit Plan or otherwise, (Bii) result in the vesting or acceleration of increase any benefits otherwise payable under any Compensation and Sagebrush Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (Ciii) result in any material increase acceleration in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any the time of its Subsidiaries maintains any compensation plans, programs payment or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result vesting of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries benefit. Sagebrush has made any agreement, taken any action, no oral or omitted to take any action, written representation with respect to or as part any aspect of any Compensation and Sagebrush Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any employee of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct Sagebrush prior to the Effective Time. As a result, directly date hereof that is not in accordance with the written or indirectly, otherwise pre-existing terms and conditions of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codeplans.
Appears in 2 contracts
Samples: Merger Agreement (Sagebrush Inc), Merger Agreement (WSMP Inc)
Employee Benefit Plans. (ia) On Prior to the date hereof, CHSC has provided Farmland with a list identifying each material "employee benefit plan," as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974 ("ERISA"), Cardinal has set forth a complete each material employment, severance or similar contract, plan, arrangement or policy applicable to any director, former director, employee or former employee of CHSC and accurate list of all existing bonuseach material plan or arrangement (written or oral), incentive, deferred providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit planbenefits) which is maintained, employment administered or severance agreements contributed to by CHSC and all similar practices, policies and arrangements in which covers any current employee or director or former employee or director of CHSC, or under which CHSC has any liability. Such material plans (the “Employees”)excluding any such plan that is a "multiemployer plan", current or former consultant (the “Consultants”) or current or former director (the “Directors”as defined in Section 3(37) of Cardinal or any of its Subsidiaries participates or ERISA) are referred to which any such Employees, Consultants or Directors are a party (collectively herein as the “Compensation and Benefit "CHSC Employee Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan".
(iib) Each Compensation and Benefit CHSC Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorders, rules and regulations (including but not limited to, ERISA, to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the Securities Actaggregate, the Exchange Acthave a Material Adverse Effect on CHSC.
(c) Neither CHSC nor any affiliate of CHSC has incurred a liability under Title IV of ERISA that has not been satisfied in full, the Age Discrimination in Employment Act, and no condition exists that presents a material risk to CHSC or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, affiliate of CHSC of incurring any such liability other than liability for premiums due the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law Pension Benefit Guaranty Corporation (which premiums have been timely made. paid when due).
(d) Each Compensation and Benefit CHSC Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code is so qualified and has received been so qualified during the period from its adoption to date, and each trust forming a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan part thereof is exempt from federal income tax under pursuant to Section 501(a) of the Code.
(e) from No director or officer or other employee of CHSC or any of its Subsidiaries will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the Internal Revenue Service transactions contemplated hereby.
(“IRS”f) Each CHSC Employee Plan that provides for post-retirement health and medical, life or the Compensation and Benefit Plan uses a prototype other insurance benefits for retired employees of CHSC or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged been adequately reserved for in a transactionCHSC's financial statements.
(g) There has been no amendment to, written interpretation or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal announcement (whether or not written) by CHSC or any of its Subsidiaries to a material tax affiliates relating to, or penalty imposed by either Section 4975 change in employee participation or coverage under, any CHSC Employee Plan which would increase materially the expense of maintaining such CHSC Employee Plan above the level of the Code or Section 502 of ERISAexpense incurred in respect thereof for the 12 months ended May 31, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof1999.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Transaction Agreement (Farmland Industries Inc), Transaction Agreement (Cenex Harvest States Cooperatives)
Employee Benefit Plans. (a) Section 2.11(a) of the Disclosure Schedule sets forth (i) On each material written and unwritten plan, program, policy or other arrangement (other than Affected Employee Agreements as defined in (ii) below) providing for severance, termination pay, equity-based awards, bonus or other incentive compensation (including stay bonuses but excluding sales commission plans), fringe benefits or other employee benefits whether formal or informal, and whether funded or unfunded, including without limitation, each "employee benefit plan" within the meaning of Section 6.03(m)(i3(3) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974, Cardinal has set forth a complete and accurate list of all existing bonusas amended ("ERISA"), incentivesponsored, deferred compensationmaintained, pensioncontributed to, retirementor required to be contributed to, profit-sharingfor the benefit of, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which with respect to any current or former employee (employee, consultant, independent contractor, agent or principal of the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Company or any of its Subsidiaries participates (each an "Affected Employee" and each such plan, program, policy or arrangement other than any multiemployer plan an "Affected Employee Plan") (including, but not limited to, any agreement or arrangement that obligates the Parent or any of its Subsidiaries to make any payment to any Affected Employee) and (ii) each material employment, severance, termination, consulting or similar agreement (except consulting agreements which can be terminated with 60 days or less notice without liability) between the Company or any of its Subsidiaries and any Affected Employee or with respect to which the Company or any such Employees, Consultants of its Subsidiaries has any liabilities or Directors are a party obligations (the “Compensation and Benefit Plans”each an "Affected Employee Agreement"). The Seller has delivered to the Buyer current, accurate and complete copies of all documents embodying each material Affected Employee Plan and each Affected Employee Agreement.
(b) Except as required by the terms of this Agreement or as Previously Disclosed on set forth in Section 6.03(m)(i2.11(b) of Cardinal’s the Disclosure Schedule, at no time has the Company or any member of the Controlled Group (as hereinafter defined) contributed to or been required to contribute to, or incurred any withdrawal liability (within the meaning of Section 4201 of ERISA) to any "multiemployer plan" (within the meaning of Section 3(37) of ERISA) and neither Cardinal the Company nor any of its Subsidiaries has any commitment liability, contingent or otherwise, with respect to create any additional Compensation and Benefit Plan multiemployer plan. Except as set forth in Section 2.11(b) of the Disclosure Schedule, neither the Company nor any member of the Controlled Group presently sponsors, maintains, contributes to or is required to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited contribute to, ERISAor has since January 1, the Code1996, the Securities Actsponsored, the Exchange Actmaintained, the Age Discrimination in Employment Actcontributed to or been required to contribute to, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension a "defined benefit plan” " (within the meaning of Section 3(23(35) of ERISA ERISA), whether domestic or foreign (other than a “Pension plan mandated by the law of a foreign jurisdiction) (each such plan (other than any multiemployer plan) a "Controlled Group Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter"). There is no material pending oraccumulated funding deficiency, to whether or not waived, within the knowledge meaning of Cardinal, threatened legal action, suit or claim relating to Section 302 of ERISA and Section 412 of the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any actionCode, with respect to any Compensation Controlled Group Plan, and the present value of all accrued benefits under each Controlled Group Plan, determined on a plan termination basis using the actuarial assumptions established by the Pension Benefit Guaranty Corporation (the "PBGC") as in effect on the date of determination, does not exceed the fair market value of the assets (which shall not include any accrued but unpaid contributions) of such Controlled Group Plan. Each Affected Employee Plan is and has been operated in material compliance with the terms of such plan and with all applicable Laws, including, without limitation, ERISA and the Code, and the Company and its Subsidiaries have performed all obligations required to be performed by them under each Affected Employee Plan. Neither the Company nor any member of its Controlled Group has incurred any liability under Title IV of ERISA to the PBGC in connection with any Controlled Group Plan which liability has not been fully paid prior to the date hereof, other than liability for premiums due the PBGC, which premiums have been or will be paid when due, and no steps have been taken by the plan sponsor or by the PBGC to terminate any Controlled Group Plan and no reportable event (within the meaning of Section 4043 of ERISA) and no event described in Section 4062 or 4063 of ERISA has occurred with respect to any Controlled Group Plan. Each Affected Employee Plan intended to be tax qualified under Sections 401(a) and 501(a) of the Code is so qualified. Except as disclosed in Section 2.11(a) of the Disclosure Schedule, the Company does not have any plan or commitment, whether legally binding or not, to establish any material new employee benefit or compensation plan, program, policy, practice or arrangement or to modify or terminate any existing Affected Employee Plan (and has not communicated to any Affected Employee any intention to do so). Neither the Company nor any member of the Controlled Group nor any "party-in-interest" or "disqualified person" with respect to any Affected Employee Plan has engaged in any transaction with respect to any Affected Employee Plan which has resulted or could result in the imposition of any tax under Section 4971, 4972, 4975, 4976, 4977, 4979, 4980 or 4980B of the Code that would reasonably is or could be expected liabilities of the Company. There are no actions, proceedings, arbitrations, suits or claims pending, or to subject Cardinal the knowledge of the Seller threatened, against any Affected Employee Plan, the Company or any plan official with respect to any Affected Employee Plan (other than routine benefit claims) and no Affected Employee Plan is under audit or investigation by the Internal Revenue Service, the Department of its Subsidiaries Labor or the PBGC and to the knowledge of the Seller no such audit or investigation is pending. Except as disclosed in Section 2.11(b) of the Disclosure Schedule, the retiree life insurance, medical and dental benefits described therein may be modified or terminated by the Company, subject only to the payment of claims incurred (whether or not reported) prior to such modification or termination. Except as disclosed in Section 2.11(b) of the Disclosure Schedule, neither the Company nor any member of the Controlled Group maintains or contributes to any Affected Employee Plan which provides, or has any liability to provide, life insurance, medical or dental benefits to any Affected Employee upon his retirement or termination of employment (except as may be required under Section 601 of ERISA and Section 4980B of the Code). Except as disclosed in Section 2.11(a) of the Disclosure Schedule, the execution of, and the performance of transactions contemplated by, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Affected Employee Plan, Affected Employee Agreement, trust or loan that will or may result in any payment (whether of incentive pay, severance pay or otherwise), acceleration, vesting, distribution or increase in benefits or obligation to fund benefits or the forgiveness of indebtedness with respect to any Affected Employee. For purposes of this Section 2.11, "Controlled Group" shall include, collectively, each business, entity or other organization which is a material tax member of a "controlled group," or penalty imposed by either Section 4975 an "affiliated service group" or under "common control" with the Company (within the meaning of Sections 414(b), (c), (m) or (o) of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Stock Purchase Agreement (McLeodusa Inc), Stock Purchase Agreement (McLeodusa Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(iPrior to the date hereof, the Company has provided Acquirer with a list (set forth on Schedule 3.14) identifying each material "employee benefit ------------- plan," as defined in section 3(3) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974 ("ERISA"), Cardinal has set forth a complete each material employment, severance or similar contract, plan, arrangement or policy applicable to any director, former director, employee or former employee of the Company and accurate list of all existing bonuseach material plan or arrangement (written or oral), incentive, deferred providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post- employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit planbenefits) which is maintained, employment administered or severance agreements contributed to by the Company and all similar practices, policies and arrangements in which covers any current employee or director or former employee or director of the Company, or under which the Company has any liability. Such material plans (the “Employees”)excluding any such plan that is a "multiemployer plan", current or former consultant (the “Consultants”) or current or former director (the “Directors”as defined in section 3(37) of Cardinal or any of its Subsidiaries participates or ERISA) are referred to which any such Employees, Consultants or Directors are a party (collectively herein as the “Compensation and Benefit "Company Employee Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan."
(iib) Each Compensation and Benefit Company Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorders, rules and regulations (including but not limited to, ERISA, to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the Securities Actaggregate, have a Material Adverse Effect on the Exchange ActCompany.
(c) Neither the Company nor any affiliate of the Company has incurred a liability under Title IV of ERISA that has not been satisfied in full, and no condition exists that presents a material risk to the Age Discrimination in Employment Act, Company or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, affiliate of the Code, Company of incurring any such liability other than liability for premiums due the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law Pension Benefit Guaranty Corporation (which premiums have been timely made. paid when due).
(d) Each Compensation and Benefit Company Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section section 401(a) of the Code is, to the knowledge of the Company, so qualified and has received been so qualified during the period from its adoption to date, and each trust forming a favorable determination letter or has applied for a favorable determination letter in compliance with part thereof is, to the Code (including a determination that knowledge of the related trust under such Compensation and Benefit Plan is Company, exempt from federal income tax under Section pursuant to section 501(a) of the Code.
(e) from Except as set forth in Schedule 3.14, no director or officer or other ------------- employee of the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Company or any of its Subsidiaries will become entitled to a material tax any retirement, severance or penalty imposed by either Section 4975 similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to any employee stock option or other benefit under any stock option plan or compensation plan or arrangement of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 Company) solely as a result of the Code that the taxable period of any such transaction expired as of the date hereoftransactions contemplated hereby.
(iiif) No Compensation Company Employee Plan provides post-retirement health and Benefit Plans currently maintainedmedical, life or maintained within other insurance benefits for retired employees of the last six years, by Cardinal Company or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action other than as required by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Planlaw.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiig) Except as set forth on Section 6.03(m)(viiiSchedule 3.14, there has been no amendment to, ------------- written interpretation or announcement (whether or not written) of Cardinal’s Disclosure Schedule, by the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal Company or any of its Subsidiaries that affiliates relating to, or change in employee participation or coverage under, any Company Employee Plan which would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as increase materially the expense of maintaining such terms are defined in Section 280G Company Employee Plan above the level of the Code), without regard to whether such payment is reasonable compensation expense incurred in respect thereof for personal services performed or to be performed in the future12 months ended on the Company Balance Sheet Date.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Inference Corp /Ca/), Merger Agreement (Inference Corp /Ca/)
Employee Benefit Plans. (ia) On Section 6.03(m)(iSchedule 5.17(a) of Cardinal’s the Disclosure Schedule, Cardinal has set Letter sets forth a complete and accurate list of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, the benefits Seller provides to or for the Persons listed on Schedule 5.16 of the Disclosure Letter. Each “employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements ,” as defined in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”Section 3(3) of Cardinal ERISA, maintained, contributed to or required to be contributed to by Seller or any of its Subsidiaries participates ERISA Affiliates for the benefit of current, former or to which any such Employees, Consultants or Directors are a party retired employees (the “Compensation and Benefit Seller ERISA Plans”). Except as ) and each other plan, contract, program or arrangement maintained, contributed to or required to be contributed to by the terms of this Agreement Seller or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and ERISA Affiliates for the benefit of current, former or retired employees (the “Seller Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(iiArrangements”) Each Compensation and Benefit Plan has been operated and administered complies in all material respects in accordance with its terms and with all applicable lawLaws, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, including ERISA and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, no “reportable event” or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individualprohibited transaction” (as such terms are defined in Section 280G ERISA) or termination has occurred with respect to any Seller ERISA Plan under circumstances that present a risk of any material Liability to Seller. Copies or descriptions of each Seller ERISA Plan and Seller Benefit Arrangement in which current employees of the Code), without regard Business participate have been provided to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment Buyer prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) date hereof. Except as set forth on Section 6.03(m)(xiiSchedule 5.17(a) of Cardinal’s the Disclosure ScheduleLetter, neither Cardinal Seller nor any of its Subsidiaries ERISA Affiliates has made any agreementobligation to provide medical or life insurance coverage to any Transferred Employee under the Seller ERISA Plans, taken the Seller Benefit Arrangements or any actionother plan or Contract, except as required by applicable laws.
(b) No Seller ERISA Plan or omitted any other plan sponsored or contributed to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal by Seller or any of its Subsidiaries to ERISA Affiliates has incurred any obligation to report any amount “accumulated funding deficiency” as such term is defined in Section 302 of ERISA and Section 412 of the Code (whether or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or not waived).
(c) Neither Seller nor any of its Subsidiaries under ERISA Affiliates has contributed to or completely or partially withdrawn from a “multiemployer plan” (as such term is defined in Section 409A (3)(37) of ERISA) within the last six years.
(d) Neither Seller nor any of its Affiliates has at any time provided or maintained any plan, program or arrangement providing post-retirement medical or other post-retirement benefits for or on behalf of the Code employees of the Business (other than as required by applicable Laws) and there has been no communication to employees that could reasonably be interpreted to promise or guarantee such post retirement benefits.
(e) Neither Seller nor any of its ERISA Affiliates has ever maintained or contributed to pay any reimbursement or other payment a defined benefit pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA.
(f) No Person listed on Schedule 5.16 of the Disclosure Letter will become entitled to any service providerretirement, severance or any other increased or accelerated compensation or benefit solely as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, result of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codehereby.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Catalytica Energy Systems Inc), Asset Purchase Agreement (Renegy Holdings, Inc.)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) Schedule 4.13 of Cardinal’s the Cyrk Disclosure Schedule, Cardinal has set forth a complete Schedule lists all employee compensation and accurate 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, severance, welfare and fringe benefit plans, survivor life insuranceagreements, split dollar commitments, practices or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which of any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, type including, but not limited to, plans described in Section 3(3) of 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 Cyrk or any trade or business (whether or not incorporated) which is a member of a controlled group or which is under common control with Cyrk within the meaning of Sections 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (hereinafter a "Cyrk ERISA Affiliate"), offered, maintained or contributed to by Cyrk or a Cyrk ERISA Affiliate, or with respect to which Cyrk or a Cyrk ERISA Affiliate has or reasonably could be expected to have any liability, whether direct or indirect, actual or contingent (collectively, the "Cyrk 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 Cyrk or a Cyrk ERISA Affiliate, or with respect to which Cyrk or a Cyrk ERISA Affiliate has or reasonably could be expected to have any liability other than the Cyrk Benefit Plans. With respect to such Cyrk Benefit Plans:
(i) Each such Cyrk Benefit Plan (and each related trust, insurance contract, or fund) is administered in all material respects in compliance with its terms and complies in form and in operation in all material respects with the applicable requirements of ERISA, the Code, the Securities Actand other applicable laws, the Exchange Actrulings and authority issued thereunder.
(ii) All required reports and descriptions (including Form 5500 Annual Reports, the Age Discrimination in Employment ActSummary Annual Reports, or any regulations or rules promulgated thereunderPBGC-1's, and all filings, disclosures and notices Summary Plan Descriptions) have been timely filed or distributed appropriately with respect to each such Cyrk Benefit Plan as required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act Code and any other applicable law law. The requirements of Sections 601-609 of ERISA and of Section 4980B of the Code have been timely made. Each Compensation and met with respect to each such Cyrk Benefit Plan that which is an “employee pension benefit plan” "Employee Welfare Benefit Plan," within the meaning of Section 3(23(1) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation All contributions, premiums or other payments (including all employer contributions and employee contributions) which are due have been paid to each Cyrk Benefit Plan. There are no unfunded benefit obligations with respect to such Cyrk Benefit Plans currently maintainedwhich have not been accounted for by records, or otherwise properly footnoted in accordance with generally accepted accounting principles on the financial statements of Cyrk or a Cyrk ERISA Affiliate, whichever is applicable, which obligations are expected to have a material adverse effect on Cyrk or a Cyrk ERISA Affiliate.
(iv) Cyrk has delivered to or made available to Simon, true, correct and complete copies of the Cyrk Benefit Plan documents, 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 funding agreements which implement each Cyrk Benefit Plan, any and all material employee communications (including all summary plan descriptions and material modifications thereto), the most recent account of plan assets, if applicable, and, in the case of any unfunded or self-insured plan or arrangement, a current estimate of accrued and anticipated liabilities thereunder.
(b) With respect to each Cyrk Benefit Plan that Cyrk or a Cyrk ERISA Affiliate maintains or ever has maintained or to which Cyrk or a Cyrk ERISA Affiliate contributes, ever has contributed, or ever has been required to contribute:
(i) No such Cyrk Benefit Plan which is an Employee Pension Benefit Plan has been completely or partially terminated or been the subject of a "Reportable Event" within the last six yearsmeaning of Section 4043 of ERISA as to which notices would be required to be filed with the Pension Benefit Guaranty Corporation within the five years preceding the date hereof with respect to which Cyrk or a Cyrk ERISA Affiliate is likely to have any liability. No proceeding by the Pension Benefit Guaranty Corporation to terminate any such Employee Pension Benefit Plan has been instituted or threatened.
(ii) Neither Cyrk nor a Cyrk ERISA Affiliate has incurred and none of the stockholders, by Cardinal or any of its Subsidiaries or any entity directors and officers (an “ERISA Affiliate”) that is considered one employer and employees with Cardinal under Section 4001(a)(14responsibility for employee benefits matters) of Cyrk or a Cyrk ERISA Affiliate has any reason to expect that Cyrk or Section 414(ba Cyrk ERISA Affiliate will incur any liability to the Pension Benefit Guaranty Corporation (other than applicable premium payments) or (c) of the Code is or was subject to otherwise under Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency Code with respect to any Compensation and such Cyrk Benefit Plan which is an Employee Pension Benefit Plan.
(iv) All contributions required to be made under . No asset of Cyrk or a Cyrk ERISA Affiliate is the terms subject of any Compensation and Benefit Plan or any employee benefit arrangements lien arising under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29302(f) of the Code, and (y) has taken any action, ERISA or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code and neither Cyrk nor a Cyrk ERISA Affiliate has been required to post any security under Section 307 of ERISA or pursuant Section 401(a)(29) of the Code and no fact or event exists, or is reasonably expected to ERISAoccur, which could give rise to any such lien or requirement to post any such security.
(vc) Neither Cardinal Cyrk nor a Cyrk ERISA Affiliate contributes to, ever has contributed to, or ever has been required to contribute to any Multiemployer Plan, within the meaning of its Subsidiaries Section 3(37) of ERISA, or has any obligations liability (including withdrawal liability, as determined under Sections 4201 et seq. of ERISA) under any Multiemployer Plan.
(d) Neither Cyrk nor a Cyrk ERISA Affiliate maintains, ever has maintained, ever has contributed to, or ever has been required to provide retiree health and contribute to any Employee Welfare Benefit Plan providing medical, health, or life insurance, retiree long-term care insurance or retiree death other welfare-type benefits for current or other benefits under any Compensation and Benefit Planfuture retired or terminated employees, their spouses, or their dependents (other than benefits mandated by Section in accordance with Sections 601-609 of ERISA and Sections 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiie) Except as set forth on Section 6.03(m)(viii) Subject to applicable requirements of Cardinal’s Disclosure ScheduleERISA, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result no provision of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) Cyrk Benefit Plan or any increase in compensation, (B) result in agreement with any employee of Cyrk or a Cyrk ERISA Affiliate or any representation or course of conduct by or on behalf of Cyrk or a Cyrk ERISA Affiliate would prevent the vesting amendment or acceleration termination on or after the Closing of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Cyrk Benefit Plan.
(ixf) No Cyrk Benefit Plan is a "multiple employer welfare arrangement" within the meaning of Section 3(40) of ERISA.
(g) Neither Cardinal Cyrk nor Cyrk ERISA Affiliate maintains or has any obligation to contribute to any "voluntary employees' beneficiary association" within the meaning of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m501(c)(9) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of funding arrangement for the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, welfare or any actions taken or omitted thereunder, violate Section 409A of the Codefringe benefits.
Appears in 2 contracts
Samples: Merger Agreement (Brown Allan), Merger Agreement (Brown Allan)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete All employee benefits plans and accurate 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, severance, welfare and fringe other benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practicesprograms, policies and arrangements in which any current or former employee covering employees of Kimco and its Subsidiaries (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and "Kimco Benefit Plans”)") are listed in the Kimco Disclosure Letter. Except as required by True and complete copies of the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure ScheduleKimco Benefit Plans have been made available to Price REIT. To the extent applicable, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and the Kimco Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered Plans comply, in all material respects in accordance respects, with its terms the requirements of ERISA and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Kimco Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with been determined by the Code (including a determination that the related trust under such Compensation and IRS to be so qualified. No Kimco Benefit Plan is exempt from tax under or has been covered by Title IV of ERISA or Section 501(a) 412 of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and . Neither any Kimco Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries fiduciary thereof nor Kimco has engaged in a transaction, or omitted to take incurred any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax liability or penalty imposed by either under Section 4975 of the Code or Section 502 502(i) of ERISA, assuming for purposes of Section 4975 of . Each Kimco Benefit Plan has been maintained and administered in all material respects in compliance with its terms and with ERISA and the Code that to the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISAextent applicable thereto. To the knowledge of Cardinalthe executive officers of Kimco, there is are no pending investigation or enforcement anticipated claims against or otherwise involving any of the Kimco Benefit Plans and no suit, action by or other litigation (excluding claims for benefits incurred in the PBGC, the DOL ordinary course of Kimco Benefit Plan activities) has been brought against or IRS or any other governmental agency with respect to any Compensation and such Kimco Benefit Plan.
(iv) , except for any of the foregoing which would not have a Kimco Material Adverse Effect. All material contributions required to be made under as of the terms of any Compensation and date hereof to the Kimco Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party Plans have been timely made or have provided for. Neither Kimco nor any entity under "common control" with Kimco within the meaning of ERISA Section 4001 has contributed to, or been reflected on Cardinal’s financial statements. None of Cardinalrequired to contribute to, any "multiemployer plan" (as defined in Sections 3(37) and 4001(a)(3) of its Subsidiaries ERISA). Kimco does not maintain or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security contribute to any Pension Plan pursuant plan, program, policy or arrangement which provides or has any liability to provide life insurance, medical or other employee welfare benefits or supplemental pension benefits to any employee or former employee upon his retirement or termination of employment, except as required under Section 401(a)(29) 4890B of the Code, and Kimco has never represented, promised or contracted (ywhether in oral or written form) has taken to any action, employee or omitted to take any action, former employee that has resulted, or such benefits would reasonably be expected to result, provided. Except as disclosed in the imposition of a lien under Section 412(n) Kimco Reports, the execution of, and performance of the Code transactions contemplated by, this Agreement will not (either alone or pursuant to ERISA.
upon the occurrence of any additional subsequent events) constitute an event under any benefit plan, program, policy, arrangement or agreement or any trust or loan that will or may result in any payment (v) Neither Cardinal nor any whether of its Subsidiaries has any severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligations to provide retiree health and life insurancefund benefits with respect to any employee, retiree long-term care insurance director or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B consultant of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal Kimco or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basisSubsidiaries.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Kimco Realty Corp), Merger Agreement (Price Reit Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal United has set forth Previously Disclosed a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “United Employees”), current or former consultant (the “United Consultants”) or current or former director (the “United Directors”) of Cardinal United or any of its Subsidiaries participates or to which any such United Employees, United Consultants or United Directors are a party (the “United Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each United Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “United Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such United Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) IRS or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal United is not aware of any circumstances that which could adversely affect such qualification or that which are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of CardinalUnited, threatened legal action, suit or claim relating to the United Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal United nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any United Compensation and Benefit Plan that would reasonably be expected to subject Cardinal United or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, liability (other than for payment of premiums to the PBGC which have been made or maintained within the last six years, will be made on a timely basis) under Title IV of ERISA has been or is expected to be incurred by Cardinal United 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 any single-employer plan of any entity (an “United ERISA Affiliate”) that which is considered one employer with Cardinal United under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is (an “United ERISA Affiliate Plan”). None of United, any of its Subsidiaries or was subject any United ERISA Affiliate has contributed, or has been obligated to Title IV of ERISA or is or was contribute, to a multiemployer plan under Subtitle E of Title IV of ERISAERISA at any time since September 26, 1980. 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 United Compensation and Benefit Plan or by any United ERISA Affiliate Plan within the 12-month period ending on the date hereof, and no such notice will be required to be filed as a result of the transactions contemplated by this Agreement. The PBGC has not instituted proceedings to terminate any Pension Plan or United ERISA Affiliate Plan and, to United’s knowledge, no condition exists that presents a material risk that such proceedings will be instituted. To the knowledge of CardinalUnited, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any United Compensation and Benefit Plan. Under each United Pension Plan and United ERISA Affiliate Plan, as of the date of the most recent actuarial valuation performed prior to the date of this Agreement, the actuarially determined present value of all “benefit liabilities”, within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in such actuarial valuation of such United Pension Plan or United ERISA Affiliate Plan), did not exceed the then current value of the assets of such United Pension Plan or United ERISA Affiliate Plan and since such date there has been neither an adverse change in the financial condition of such United Pension Plan or United ERISA Affiliate Plan nor any amendment or other change to such Pension Plan or ERISA Affiliate Plan that would increase the amount of benefits thereunder which reasonably could be expected to change such result.
(iv) All contributions required to be made under the terms of any United Compensation and Benefit Plan or United ERISA Affiliate Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal United or any of its Subsidiaries is a party have been timely made or have been reflected on CardinalUnited’s financial statements. Neither any United Pension Plan nor any United ERISA Affiliate Plan has an “accumulated funding deficiency” (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA and all required payments to the PBGC with respect to each United Pension Plan or United ERISA Affiliate Plan have been made on or before their due dates. None of CardinalUnited, any of its Subsidiaries or any United ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any United Pension Plan or to any United ERISA Affiliate Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal United nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or other retiree death or other benefits under any United Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such United Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, thereunder and there has been no communication to Employees by Cardinal United or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or other retiree death or other benefits on a permanent basis.
(vi) Cardinal United and its Subsidiaries do not maintain any United Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the The consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any United Employee, United Consultant or United Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any United Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any United Compensation and Benefit Plan.
(ixviii) Neither Cardinal Except for compensation paid to Xxxxxxx X. Xxxxx, neither United nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(xix) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinalnone of United, Centra or the Surviving Corporation, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xix) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal Neither United nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any United Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal United or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal United or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Centra Financial Holdings Inc), Merger Agreement (United Bankshares Inc/Wv)
Employee Benefit Plans. (ia) On Section 6.03(m)(i5.09(a) of Cardinal’s the Disclosure Schedule, Cardinal has set Schedule sets forth a complete and accurate list of all existing bonuseach “employee benefit plan” within the meaning of Section 3(3) of ERISA or any other material benefit or compensation plan, incentiveprogram, deferred compensationpolicy, agreement or arrangement (other than employment offer letters entered into in the ordinary course of business) providing pension, retirement, profit-sharing, thriftdeferred compensation, savings, employee stock ownershipbonus or incentive compensation, stock bonus, stock purchase, restricted stock, stock optionoption or equity-based compensation, severance, welfare and fringe benefit plansgroup or individual health, survivor dental, medical, disability, life insurance, split dollar survivor, or other life insurance similar benefits, whether formal or informal, written or oral, for the benefit planof any director, employment officer, consultant or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal ILG or any of its Subsidiaries participates Subsidiaries, whether active or terminated, or any spouse or beneficiary thereof, and is maintained, sponsored, contributed to, or required to be contributed to by ILG or its Subsidiaries, or under or with respect to which ILG or its Subsidiaries has or could reasonably expect to have any such Employees, Consultants liability or Directors are a party obligation (the each an “Compensation and ILG Employee Benefit PlansPlan”). .
(b) Except as required by the terms of this Agreement or as Previously Disclosed set forth on Section 6.03(m)(i5.09(b) of Cardinal’s the Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and no ILG Employee Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) 412 of the Code or pursuant to a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA.
(v) . Neither Cardinal ILG nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance current or retiree death or other benefits contingent liability by reason of at any time being treated as a single employer under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B 414 of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or Code with any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basisPerson.
(vic) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal ILG has provided heretofore delivered or otherwise made available to UnitedFaraday true, true correct and complete copies of existing: (A) Compensation and each ILG Employee Benefit Plan documents (or if such ILG Employee Benefit Plan is not written, an accurate description of the material terms thereof), and amendments thereto; with respect to each such ILG Employee Benefit Plan true, correct and complete copies of, where applicable, (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (Ei) the most recent summary plan description; , (Fii) forms filed with the PBGC (other than for minimum payments); (G) most recent annual report (Form 5500), (iii) the most recently received IRS determination or opinion letter issued by the IRS; letters, and (Hiv) any Form 5310 insurance policies, trust agreements, or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)other funding arrangements.
(viiid) Except as set forth on Section 6.03(m)(viii5.09(d) of Cardinal’s the Disclosure Schedule, each ILG Employee Benefit Plan has been maintained, funded, and administered in all material respects in compliance with its terms and with the consummation requirements prescribed by any and all statutes or governmental rules or regulations in effect from time to time, including but not limited to ERISA and the Code, and applicable to such ILG Employee Benefit Plan. Each ILG Employee Benefit Plan which is intended to qualify under Section 401(a) of the transactions contemplated by this Agreement would not, directly Code (a “ILG Qualified Plan”) and each trust or indirectly (including, without limitation, other entity intended to qualify as a result “voluntary employees’ beneficiary association” within the meaning of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m501(c)(9) of the Code and associated with any ILG Employee Benefit Plan has received a determination letter or, where the regulations issued thereunderILG Qualified Plan is based upon a master and prototype or volume submitter form, to ILG’s Knowledge the sponsor of such form has received a current advisory opinion as to the form upon which ILG and its Subsidiaries are entitled rely under applicable IRS procedures and, to ILG’s Knowledge, nothing has occurred as to each which has resulted or is likely to result in the revocation of such qualification. No nonexempt “prohibited transaction” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and no breach of fiduciary duty (as determined under ERISA) has occurred with respect to any ILG Employee Benefit Plan that has or could reasonably be expected to result in any material liability for an ILG Employee Benefit Plan, ILG or any Subsidiary.
(xe) Except as set forth on Section 6.03(m)(x5.09(e) of Cardinal’s the Disclosure Schedule, as a resultno ILG Employee Benefit Plan provides, directly or indirectlyand neither ILG nor any Subsidiary has any obligation to provide, of the transactions contemplated by this Agreement (including, without limitation, as a result of any welfare benefits subsequent to termination of employment prior to current or following former employees or their beneficiaries except to the Effective Time), neither United extent required by applicable state laws or COBRA for which the recipient pays the full premium cost. ILG and its Subsidiaries have complied in all material respects with the requirements of COBRA. Neither ILG nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” has incurred or could reasonably expect to an individual who is a “disqualified individual” incur any material penalty or Tax (as such terms are defined in whether or not assessed) under Section 280G 4980H or Section 4980D of the Code), without regard Code related to whether such payment is reasonable compensation for personal services performed or to be performed in the futureapplicable requirements of the Affordable Care Act.
(xif) As There is neither any pending Litigation nor, to the Knowledge of ILG, any Litigation threatened under or with respect to the Effective DateILG Employee Benefit Plans other than a routine claim for benefits. All contributions or payments (including all employer contributions, there employee salary reduction contributions, premiums and benefit payments) with respect to each ILG Employee Benefit Plan that are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that due have assets through a grantor trust or trusts of which Cardinal is the grantor been made within the meaning time periods prescribed by the terms of subpart Eeach ILG Employee Benefit Plan, part IERISA, subchapter J, chapter 1, subtitle A of the Code or other applicable Law, and all contributions or payments for any period ending on or before the Closing Date that are subject to claims of creditorsnot yet due have been made, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on paid or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Scheduleproperly accrued.
(xiig) Except as set forth on Section 6.03(m)(xii5.09(g) of Cardinal’s the Disclosure Schedule, neither Cardinal the execution and delivery of this Agreement or the Ancillary Agreements nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A the consummation of the Code transactions contemplated hereby or that would reasonably be expected thereby (alone or in conjunction with any other event) will (i) result in any payment becoming due to subject Cardinal any employee of ILG or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.Subsidiaries,
Appears in 2 contracts
Samples: Contribution Agreement (Interior Logic Group Holdings, LLC), Contribution Agreement (Interior Logic Group Holdings, LLC)
Employee Benefit Plans. (ia) On Set forth in Section 6.03(m)(i3.19(a) of Cardinal’s the Company Disclosure ScheduleSchedule is a list as of the date hereof of each Company Benefit Plan. For each Company Benefit Plan, Cardinal the Company has set forth made available to Parent a complete and accurate list copy of all existing bonussuch plan (or in the case of individual agreements that are based on a form agreement, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements a copy of such form) and all similar practices, policies and arrangements in which any current or former employee material amendments thereto.
(b) None of the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Company nor any of its Subsidiaries has ERISA Affiliates sponsors, maintains or contributes to any commitment plan that is (i) subject to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
Title IV of ERISA, (ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an a “employee pension benefit multiemployer plan” within the meaning of Section 3(23(37) of ERISA ERISA, (iii) a “Pension multiple employer plan” within the meaning of Section 413(c) of the Code or (iv) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(c) No Company Benefit Plan provides any post-retirement medical, dental or life insurance benefits to any current or former Company Employee (other than coverage mandated by Applicable Law, including COBRA).
(d) Except as set forth on Section 3.19(d) of the Company Disclosure Schedule, the Company does not have any obligation to gross up, indemnify, or otherwise reimburse any individual for any excise taxes, interest, or penalties incurred under Section 409A of the Code.
(e) Except as expressly provided in this Agreement or as set forth on Section 3.19(c) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will entitle any Company Employee to any material payment or benefit or accelerate the time of payment or vesting of any material compensation or benefits, in either case under any Company Benefit Plan”.
(f) and that Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS or has applied to the IRS for such a favorable determination letter within the applicable remedial amendment period or such period has not expired.
(g) Each Company Benefit Plan has been maintained in compliance with the Code (its terms and all Applicable Law, including a determination that the related trust under such Compensation ERISA and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan , except for failures to comply that is the subject of an IRS opinion or advisory letter, and Cardinal is would not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no be material pending or, to the knowledge of CardinalCompany and its Subsidiaries, threatened legal taken as a whole.
(h) No material action, suit suit, investigation, audit, proceeding or claim relating to the Compensation and Benefit Plans (other than routine claims for benefits. Neither Cardinal nor ) is pending against or involves or, to the Company’s knowledge, is threatened against or threatened to involve, any Company Benefit Plan before any Governmental Authority.
(i) Notwithstanding any other provisions of its Subsidiaries has engaged this Agreement, the representations and warranties in a transaction, or omitted to take any action, Section 3.18 and this Section 3.19 constitute the sole and exclusive representations and warranties made by the Company with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISACompany Employees, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Company Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation employee and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAmatters.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s The Disclosure Schedule, Cardinal has set Schedule sets forth a complete and accurate list and description of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and each Employee Benefit Plans”)Plan. Except as required by set forth in the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment with respect to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and each Employee Benefit Plan, the Company and the Seller's have delivered or caused to be delivered to the Purchaser and Newco true and complete copies of (i) the plan document, trust agreement and any other document governing such Employee Benefit Plan, (ii) the summary plan description, (iii) all Form 5500 annual reports and attachments, and (iv) the most recent IRS determination letter, if any, for such plan.
(iib) Each Compensation and Except as set forth in the Disclosure Schedule, each of the Employee Benefit Plan Plans has been operated and administered in all material respects in accordance compliance with its their respective terms and with all applicable law, Requirements of Law including, but not limited towithout limitation, ERISA, ERISA and the Code, . The Company has not incurred any "accumulated funding deficiency" within the Securities Act, meaning of ERISA or incurred any liability to the Exchange Act, PBGC in connection with any Employee Benefit Plan (or other class of benefits that the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. PBGC has elected to insure).
(c) Each Compensation and Employee Benefit Plan that is an “employee pension intended to be tax qualified under the Code is identified as such on the Disclosure Schedule attached to this Agreement. Each such Employee Benefit Plan has received, or the Company has applied for or will in a timely manner apply for, a favorable determination letter from the IRS stating that such Employee Benefit Plan meets the requirements of the Code and that any trust or trusts associated therewith are tax exempt under the Code.
(d) The Company does not maintain any "defined benefit plan” " covering employees of the Company or any of its Subsidiaries within the meaning of Section 3(23(35) of ERISA subject to Title IV of ERISA or any "Multiemployer Plan" within the meaning of Section 401(a)(3) of ERISA.
(a “Pension Plan”e) All contributions and that is intended payments of insurance premiums required to be qualified under Section 401(amade with respect to the Employee Benefit Plans including, without limitation, the payment of the applicable premiums on any insurance Contract funding an Employee Benefit Plan, have been fully paid in such a manner as not to cause any interest, penalties or other amounts that have not been satisfied or discharged to be assessed against the Company or any of its Subsidiaries with respect thereto.
(f) The Company has complied with the reporting and disclosure requirements of ERISA applicable to the Employee Benefit Plans and the continuation coverage requirements of the Code and ERISA applicable to any of the Employee Benefit Plans.
(g) There has received a favorable determination letter been no "prohibited transaction" or has applied for a favorable determination letter in compliance with "reportable event" within the meaning of the Code or ERISA within the last sixty (including a determination 60) months, or breach of fiduciary duty with respect to any of the Employee Benefit Plans that could subject the related trust Purchaser, the Surviving Corporation, the Company or any of their respective Subsidiaries to any tax, penalty or other liability under such Compensation and the Code or ERISA.
(h) No Employee Benefit Plan is exempt from tax under Section 501(ahas been terminated within the past sixty (60) months. There are no Legal Proceedings or claims with respect to any of the Code) Employee Benefit Plans (other than routine claims for benefits from the Internal Revenue Service (“IRS”) eligible participants or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result beneficiaries in the revocation normal and ordinary course of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material business) pending or, to the knowledge of Cardinalthe Company or the Seller threatened, threatened legal actionand to the knowledge of the Company or the Seller, suit there are no facts, events, conditions or circumstances that could give rise to any such Legal Proceeding or claim relating to the Compensation and Benefit Plans (other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged benefits from eligible participants or beneficiaries in a transaction, or omitted to take any action, with respect to any Compensation the normal and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofordinary course).
(iiii) No Compensation and Benefit Plans currently maintainedNeither the Company or any ERISA Affiliate has ever sponsored, maintained or contributed to, or maintained within the last six yearsbeen obligated to contribute to, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was employee benefit plan subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E the minimum funding requirements of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit PlanCode Section 412.
(ivj) All contributions required to be made under the terms No Employee Benefit Plan provides post retirement medical benefits, post retirement death benefits or any post retirement welfare benefits of any Compensation and Benefit Plan fund whatsoever.
(k) There are no current or any employee benefit arrangements under any collective bargaining agreement to which Cardinal former employees of the Company or any of its Subsidiaries is a party have been timely made who are on leave of absence under either of the Uniformed Services Employment or have been reflected on Cardinal’s financial statements. Reemployment Rights Act or the Family Medical Leave Act.
(l) None of Cardinalthe Company, any of its Subsidiaries Subsidiaries, or any ERISA Affiliate of their respective officers, directors or significant employees (x) has providedas such term is defined in Regulation S-K of the Securities Act), or would reasonably be expected to be required to provide, security any other Person has made any statement or communication or provided any materials to any Pension Plan pursuant to Section 401(a)(29) employee or former employee of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition Company of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably provides for or could be expected construed as a contract, agreement or commitment by the Purchaser or any of its Affiliates to promise or guarantee such Employees retiree health or life insurance or retiree death provide for any pension, welfare, or other benefits on a permanent basisemployee benefit or fringe benefit plan or arrangement to any such employee or former employee, whether before or after retirement or separation or otherwise.
(vim) Cardinal The execution and its Subsidiaries do not maintain any Compensation delivery of this Agreement and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a will not result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or in any increase in compensation, (B) result in the vesting or acceleration of any benefits obligation or liability under any Compensation and Employee Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in to any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs employee or arrangements the payments under which would not reasonably be expected to be deductible as a result former employee of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal Company or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the futureSubsidiaries.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Imagemax Inc), Agreement and Plan of Reorganization (Imagemax Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i4.13(a) of Cardinal’s the Tower Disclosure Schedule, Cardinal has set forth Schedules includes a complete and accurate 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, and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements plans and all similar other benefit practices, policies and arrangements maintained by Tower or any Tower Subsidiary and in which any current or former employee employees in general may participate (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Tower Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(iib) Each To the Knowledge of Tower, each Tower Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or COBRA, HIPAA, 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 Act, COBRA, and HIPAA and any other applicable law have been timely mademade or any interest, fines, penalties or other impositions for late filings have been paid in full. Each Tower Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal Tower is not aware of any circumstances that could adversely affect such qualification or that which are reasonably likely to result in the revocation of any existing favorable determination letter or in not receiving a such favorable determination letter. There is no material pending or, to the knowledge Knowledge of CardinalTower, threatened legal action, suit or claim relating to any of the Tower Compensation and Benefit Plans (other than routine claims for benefits). Neither Cardinal Tower nor any of its Subsidiaries Tower Subsidiary has engaged in a transaction, or omitted to take any action, with respect to any Tower Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Tower or any of its Subsidiaries Tower Subsidiary to a material unpaid tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iiic) No liability to any Governmental Entity, other than PBGC premiums arising in the ordinary course of business, has been or is expected by Tower or any Tower Subsidiary with respect to any Tower Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that Plan which is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA (“Tower Pension Plan”) currently or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action formerly maintained by the PBGC, the DOL or IRS Tower or any other governmental agency entity which is considered one employer with Tower under Section 4001(b)(1) of ERISA or Section 414 of the Code (an “Tower ERISA Affiliate”). No Tower Defined Benefit Plan had an “accumulated funding deficiency” (as defined in Section 431 of the Code), 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 Tower Defined Benefit Plan exceeds the present value of the benefits guaranteed under Section 4022 of ERISA under such Tower Defined Benefit Plan as of the end of the most recent plan year with respect to any Compensation the respective Tower 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 Tower Defined Benefit Plan as of the date hereof; and Benefit Plan.
no notice of a “reportable event” (ivas defined in Section 4043 of ERISA) All contributions for which the 30-day reporting requirement has not been waived has been required to be made under the terms of filed for any Compensation and Tower Defined Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or within the 12-month period ending on the date hereof. Neither Tower nor any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be is required to provide, security to any Pension Tower Defined Benefit Plan pursuant to Section 401(a)(29) of the Code, and (y) or has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, result in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA. Neither Tower nor any Tower Subsidiary nor any Tower ERISA Affiliate has contributed to any “multiemployer plan,” as defined in Section 3(37) of ERISA, on or after January 1, 1998.
(vd) Neither Cardinal nor All material contributions required to be made under the terms of any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Tower Compensation and Benefit Plan may be amended or terminated without incurring liability thereunderhave been timely made, and there has been no communication all anticipated contributions and funding obligations are accrued on Tower’s consolidated financial statements to Employees the extent required by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal GAAP. Tower and its Subsidiaries do not maintain any Compensation have expensed and Benefit Plans covering foreign Employees.
(vii) With respect to accrued as a liability the present value of future benefits under each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) applicable Tower Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and for financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued reporting purposes as required by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)GAAP.
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (First Chester County Corp), Merger Agreement (First Chester County Corp)
Employee Benefit Plans. (ia) On Section 6.03(m)(i4.8(a) of Cardinal’s the Parent Disclosure Schedule, Cardinal has set Letter sets forth a true and complete and accurate 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 Parent, any Parent Subsidiary or any Parent 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 Parent, any Parent Subsidiary or any Parent ERISA Affiliate, or under which Parent, any Parent Subsidiary or any Parent ERISA Affiliate has any material obligation or liability, whether actual or contingent, including, without limitation, all existing material incentive, bonus, incentive, deferred compensation, pensionvacation, retirementholiday, profit-sharingcafeteria, thriftmedical, savings, employee stock ownership, stock bonusdisability, 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 Parent, any Parent Subsidiary or any Parent ERISA Affiliate, which are now, or were within the past 6 years, maintained, sponsored or contributed to by Parent, any Parent Subsidiary or any Parent ERISA Affiliate, or under which Parent, any Parent Subsidiary or any Parent 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, severancestock appreciation, welfare and fringe benefit phantom stock, restricted stock or other stock-based compensation plans, survivor life insurancepolicies, split dollar programs, practices or arrangements is hereinafter referred to as a “Parent Benefit Plan”. Neither Parent, nor to the Knowledge of Parent, any other person, has any express or implied commitment, whether legally enforceable or not, to modify, change or terminate any Parent Benefit Plan, 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. Parent has delivered or made available to the Company true, correct and complete copies of all Parent Benefit Plans (or, if not so delivered, has delivered or made available to the Company a written summary of their material terms), and, with respect thereto, all amendments, trust agreements, insurance Contracts, other funding vehicles, determination letters issued by the IRS, the most recent annual reports (Form 5500 series) filed with the IRS, and the most recent actuarial report or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or financial statement relating to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Parent Benefit Plan.
(iib) Each Compensation and Parent Benefit Plan has been operated maintained, funded and administered in all material respects in accordance with its terms and with all applicable lawLaws, including, but not limited to, ERISA, including ERISA and the Code, and contributions and premium payments required to be made under the Securities Act, terms of any of the Exchange Act, Parent Benefit Plans as of the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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 date of this Agreement have been timely made. With respect to the Parent Benefit Plans, no event has occurred and, to the Knowledge of Parent, there exists no condition or set of circumstances in connection with which Parent or any Parent 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 Parent Benefit Plans, ERISA, the Code or any other applicable Law, and neither Parent nor any ERISA Affiliate has any actual or contingent material liability under ERISA Section 502.
(c) Each Compensation and Parent Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received obtained or is the subject of a favorable determination letter or has applied for a favorable determination letter in compliance with from the Code (including a determination IRS that the related trust under such Compensation and Parent Benefit Plan is so qualified and all related trusts are exempt from tax U.S. federal income taxation under Section 501(a) of the Code) from , and, to the Internal Revenue Service (“IRS”) Knowledge of Parent, nothing has occurred, whether by action or by failure to act, which could be reasonably expected to cause the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject loss of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in exemption. Except as would not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal result in material liability to Parent or any a Parent Subsidiary, (i) there has been no prohibited transaction (within the meaning of its Subsidiaries to a material tax Section 406 of ERISA or penalty imposed by either 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, and no fiduciary of any Parent 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 Parent Benefit Plan, (ii) no suit, administrative proceeding, action, claim or litigation has been brought, or to the Knowledge of Parent is threatened, against or with respect to any such Parent 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 Parent, there is no basis for any such suit, administrative proceeding, action, claim or litigation, (iii) none of the assets of Parent, any Parent Subsidiary or any Parent ERISA Affiliate are, or may reasonably be expected to become, the subject of any lien arising under ERISA or Section 502 412(n) of ERISAthe Code, assuming for purposes of Section 4975 (iv) all Tax, annual reporting and other governmental filings required by ERISA and the Code with respect to a Parent Benefit Plan have been timely filed with the appropriate Governmental Entity and all notices and disclosures have been timely provided to participants, (v) all contributions and payments to each Parent Benefit Plan are deductible under applicable Code sections including, as applicable, Sections 162 or 404, and (vi) no material excise Tax could be imposed upon Parent or any Parent Subsidiary under Chapter 43 of the Code that the taxable period of with respect to any such transaction expired as of the date hereofParent Benefit Plan.
(iiid) No Compensation and Benefit Plans currently maintainedNone of Parent, any Parent Subsidiary or any Parent ERISA Affiliate sponsors, maintains, contributes to or has an obligation to contribute to, or maintained within the last six yearshas any actual or contingent liability with respect to, by Cardinal or any “employee pension benefit plan” (as defined in Section 3(2) of its Subsidiaries or any entity (an “ERISA Affiliate”ERISA) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) 412 of the Code, and (y) has taken or any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, “multiemployer plan” as defined in the imposition of a lien under Section 412(n3(37) of the Code or pursuant to ERISA.
(ve) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries No amount that would be reasonably be expected to promise be received (whether in cash or guarantee such Employees retiree health property or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Planthe vesting of property), if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed in connection with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would notAgreement, directly by any employee, officer or indirectly (including, without limitation, as a result director of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal Parent or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are term is defined in proposed Treasury Regulation Section 1.280G-1) under any Parent Benefit Plan or otherwise may be characterized as an “excess parachute payment” (as defined in Section 280G 280G(b)(1) of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xif) As Except as required under COBRA, no Parent Benefit Plan provides any of the Effective Datefollowing retiree or post-employment benefits to any person: medical, there disability or life insurance or other welfare-type benefits. Parent, the Parent Subsidiaries and each Parent ERISA Affiliate are no supplemental employment retirement plans in compliance with (eachi) the requirements of COBRA, a “SERP”and (ii) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A applicable requirements of the Code that are subject to claims Health Insurance Portability and Accountability Act of creditors1996 and the regulations (including the proposed regulations) thereunder, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedulewould not be reasonably expected to result in material liability to Parent, no such grantor trusts are required to be established on any Parent Subsidiary or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure ScheduleParent ERISA Affiliate.
(xiig) Except as set forth on Section 6.03(m)(xii4.8(g) of Cardinal’s the Parent Disclosure ScheduleLetter, neither Cardinal Parent nor any of its Subsidiaries Parent Subsidiary maintains, sponsors, contributes to or has made any agreement, taken any action, or omitted to take any action, material liability with respect to any employee benefit plan, program or as part arrangement that provides benefits to non-resident aliens with no United States source income outside of any Compensation and the United States (each, a “Parent Foreign Benefit Plan”). Each Parent Foreign Benefit Plan that has been maintained, funded and administered in compliance in all material respects with all Laws applicable thereto and the respective requirements of such Parent Foreign Benefit Plan’s governing documents, and no Parent Foreign Benefit Plan has any unfunded or underfunded liabilities.
(h) Neither Parent nor any Parent Subsidiary is an operational failure under 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) Parent has identified in Section 409A 4.8(i) of the Code Parent Disclosure Letter and has made available to the Company true and complete copies of (i) all severance and employment agreements currently in effect with directors, officers or that would reasonably be expected employees of or consultants to subject Cardinal Parent or any Parent Subsidiary, (ii) all severance programs and policies of each of Parent and each Parent Subsidiary with or relating to its Subsidiaries employees, and (iii) all plans, programs, agreements and other arrangements of each of Parent and each Parent Subsidiary with or relating to any obligation to report any amount its directors, officers, employees or withhold any amount as includable consultants which contain change in income control provisions. Neither the execution and subject to tax, interest or any penalty by any service provider to Cardinal or any delivery of its Subsidiaries under Section 409A of the Code or to pay any reimbursement this Agreement or other payment to any service providerrelated agreements, as defined under Section 409A of nor the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, consummation of the transactions contemplated by this Agreement 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, as a severance, unemployment compensation, parachute or otherwise) becoming due to any director or any employee of Parent or any Parent Subsidiary or Affiliate from Parent or any Parent Subsidiary or Affiliate under any Parent Benefit Plan or otherwise, (ii) significantly increase any benefits otherwise payable under any Parent Benefit Plan or (iii) result in any acceleration of the time of payment or vesting of any termination benefits, except as may be required by applicable Law.
(j) Parent and the Parent Subsidiaries have, for purposes of employment prior to or following the Effective Time)each relevant Parent Benefit Plan, neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest correctly classified those individuals performing services for Parent or any penalty by any service provider (Parent Subsidiary as defined under Section 409A of the Code) to Cardinal common law employees, leased employees, independent contractors or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codeagents.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Integrated Device Technology Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i) All Hired Active Employees who are participants in Seller’s Employee Benefit Plans will retain their accrued benefits under such plans as of Cardinalthe Closing Date, and Seller will retain sole liability for the payment of such benefits as and when such Hired Active Employees become eligible therefor under such plans. All Hired Active Employees will become fully vested in their accrued benefits under Seller’s Disclosure ScheduleEmployee Benefit Plans as of the Closing Date, Cardinal has set forth a complete and accurate list Seller will so amend such plans if necessary to achieve this result. Neither Seller nor any ERISA Affiliate of all existing bonusSeller will make any transfer of any Employee Benefit Plan assets to Buyer. Seller also agrees to retain responsibility for medical and disability payments to employees engaged primarily in the Business but on medical or disability leave at the Closing Date until such time as such employee is, incentiveif ever, deferred compensationoffered employment by Buyer, pensionin its sole discretion, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation otherwise required under applicable law or regulation. Any Active Employee or qualified beneficiary thereof and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Actwho is covered, or who is eligible to elect to continue his or her coverage, as of or following the Closing Date, under any regulations or rules promulgated thereunder, and all 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. Each Compensation and Employee Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (constitutes a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, group health plan,” pursuant to the knowledge provision of CardinalPart 6 of Title I, threatened legal action, suit Substitute B or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each shall be eligible to continue such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with coverage under the IRS; (D) most recent actuarial report and financial statement; (E) Seller’s plan for the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation remainder of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation applicable continuation coverage period and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would Seller shall not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting terminate any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct plan prior to the Effective Time. As a result, directly or indirectly, end of the transactions contemplated applicable coverage period. Seller agrees to indemnify Buyer for all losses incurred by this Agreement (including, without limitation, as a result Buyer or Buyer’s group health plan resulting from any claim for COBRA continuation coverage made by or on behalf of any termination current or former employee of employment prior Seller or its ERISA Affiliates or a qualified beneficiary of such an employee under any plan maintained by Buyer or its Affiliates except to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable extent that such employee is a Hired Active Employee and has become an active participant in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeBuyer’s “group health plan.”
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cygne Designs Inc), Asset Purchase Agreement (Innovo Group Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of CardinalCBTC’s Disclosure Schedule, Cardinal CBTC has set forth a complete and accurate list of all existing bonus, incentive, deferred compensation, performance driven retirement agreement, independent contractor or other consulting agreement, pension, retirementretirement (including but not limited to any frozen or terminated retirement or pension plan), SERP, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, restricted stock unit, phantom stock, stock option, severance, welfare and fringe benefit plansplans including but not limited to vacation pay, leave of absence, layoff, salary continuation, sick leave, excess benefit, bonus or other incentive compensation, day or dependent care, legal services, cafeteria, health, life, accident, disability, flexible spending account, workers’ compensation or other insurance, survivor life insurance, split dollar or other life insurance benefit plan, employment, change in control employment or other agreement or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant or other independent contractor service provider (the “Consultants”) or current or former director (the “Directors”) of Cardinal CBTC or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party or with respect to which CBTC or any of its Subsidiaries has any liability (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of CardinalCBTC’s Disclosure Schedule, neither Cardinal CBTC nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) IRS or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal CBTC is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of CardinalCBTC, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal CBTC nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal CBTC or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Except as Previously Disclosed, no Compensation and Benefit Plans currently maintained, or maintained within the last six years, or contributed to by Cardinal CBTC or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal CBTC under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code (a) is a “defined benefit plan” within the meaning of Section 414(j) of the Code or Section 3(35) of ERISA or which is or was subject to Title IV of ERISA or (b) is or was a multiemployer plan as defined under Subtitle E of Title IV of ERISA, (c) is or was a multiple employer welfare arrangement within the meaning of Section 3(40)(A) of ERISA, or (d) is or was a voluntary employees beneficiary association within the meaning of Code Section 501(c)(9). To the knowledge of CardinalCBTC, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan. No liability under Title IV of ERISA has been or is expected to be incurred by CBTC or any CBTC Subsidiary with respect to any applicable Compensation and Benefit Plan. There has been no “reportable event,” within the meaning of ERISA Section 4043. Except as listed on Section 6.03(m)(iii) of CBTC’s Disclosure Schedule, each Compensation and Benefit Plan which is exempt from certain disclosure requirements of ERISA as a “top hat” plan, has timely filed the exemption letter required by the Department of Labor.
(iv) All contributions contributions, payments or premiums required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal CBTC or any of its Subsidiaries is a party have been timely made or and all benefits accrued under any unfunded Compensation and Benefit Plan have been paid, accrued or otherwise adequately reserved and reflected on CardinalCBTC’s financial statementsstatements in accordance with GAAP, and each of CBTC and its Subsidiaries have performed all material obligations required to be performed under all Compensation and Benefit Plans with respect to which CBTC or its Subsidiaries or any ERISA Affiliate has an obligation to contribute. None of CardinalCBTC, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) or Section 430(k) of the Code or pursuant to ERISA.
(v) Neither Cardinal Except as listed on Section 6.03(m)(v) of CBTC’s Disclosure Schedule, neither CBTC nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal CBTC or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal CBTC and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal CBTC has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of CardinalCBTC’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal CBTC Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan, (D) result in any obligation to fund any benefit under any Compensation or Benefit Plan, or (E) result in the triggering or imposition of any restrictions or limitations on the right of CBTC or any of its Subsidiaries to amend or terminate any Compensation and Benefit Plan. CBTC and its Subsidiaries may, subject to the limitations imposed by applicable law and the terms of the applicable Compensation and Benefit Plan, without the consent of any employee, beneficiary, or other Person, prospectively terminate, modify, or amend any such Compensation and Benefit Plan effective as of any date on or after the date of this Agreement.
(ix) Neither Cardinal Except as set forth on Section 6.03(m)(ix) of CBTC’s Disclosure Schedule, neither CBTC nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of CardinalCBTC’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor CardinalCBTC, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal CBTC or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future. Except as set forth on Section 6.03(m)(x) of CBTC’s Disclosure Schedule, neither CBTC nor any of its Subsidiaries has any obligation to pay any gross-up or reimbursement of taxes under Section 4999 of the Code, or otherwise, with respect to this or any prior transaction.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal CBTC and any of its employees that have assets through a grantor trust or trusts of which Cardinal CBTC is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of CardinalCBTC’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal CBTC or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal CBTC is listed on Section 6.03(m)(xi) of CardinalCBTC’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal Neither CBTC nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal CBTC or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal CBTC or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal CBTC agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal CBTC nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal CBTC or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (United Bankshares Inc/Wv), Agreement and Plan of Reorganization (Community Bankers Trust Corp)
Employee Benefit Plans. (ia) On Section 6.03(m)(iSchedule 4.14(a) of Cardinal’s Disclosure Schedule, Cardinal has set sets forth a complete and accurate list of all existing bonuseach material plan, incentiveprogram, deferred compensationpolicy, agreement and arrangement, whether oral or in writing, providing retirement, pension, retirement, profit-sharing, thrift, savings, employee stock ownershiphealth and welfare, stock bonusdisability, stock purchaselife, restricted stockaccident, stock optiontermination, separation, severance, welfare and fringe benefit plansretention, survivor life insurancechange-in-control, split dollar bonus, incentive, equity compensation, or other life insurance benefit plan, employment similar benefits or severance agreements and all similar practices, policies and arrangements in which payments to any current or former employee (employees of the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates Acquired Companies or to which any such EmployeesAcquired Company contributes or has any obligation to contribute or has any liability (each, Consultants or Directors are without regard to materiality, a party (“Benefit Plan” and collectively, the “Compensation and Benefit Plans”). For the avoidance of doubt, the Benefit Plans include benefits or plans established or maintained by the Acquired Companies to satisfy a requirement of Law, but do not include benefits or plans that are delivered or provided by a Governmental Authority, regardless of whether the Acquired Companies make contributions to such arrangements, such as payments mandated by a Governmental Authority for which none of the Acquired Companies maintains a plan to deliver such payments, such as statutory severance obligations. Except as required by the terms of this Agreement or as Previously Disclosed set forth on Section 6.03(m)(iSchedule 4.14(a), with respect to each Benefit Plan:
(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and each Benefit Plan (and each related trust, insurance Contract or to modify or change any existing Compensation and Benefit Plan.
(iifund) Each Compensation and Benefit Plan has been operated administered in a manner materially consistent with its terms and administered complies in all material respects in accordance with its terms form and operation with applicable lawLaw;
(ii) all contributions, including, but not limited to, ERISA, premiums or other payments (including all employer contributions and employee salary reduction contributions) that are required to be made under the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or terms of any regulations or rules promulgated thereunder, and all 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 Benefit Plan have been timely made. ;
(iii) Each Compensation and of the Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and Plans that is intended to be qualified under Section 401(a) of the Code Code, has received a favorable determination letter or has applied for may rely upon a favorable determination opinion letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the United States Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterregarding such qualified status, and Cardinal is which letter has not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending orbeen revoked, and, to the knowledge of CardinalCompany’s Knowledge, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries no event has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan occurred that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period adversely affect such qualified status of any such transaction expired as Benefit Plan; and
(iv) the Company has made available to Parent correct and complete copies of the date hereof.
(iii) No Compensation plan documents and most recent summary plan descriptions for each Benefit Plans currently maintainedPlan, or maintained within and, with respect to each Benefit Plan covering employees resident in the last six yearsUnited States, by Cardinal or together with, to the extent applicable to any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGCsuch Benefit Plan, the DOL current trust (or IRS other funding) agreement, the most recent annual report on Form 5500, the most recent financial statement, the most recent actuarial report, each agreement with any service provider, investment manager or any other governmental agency investment advisor with respect to any Compensation Benefit Plan, the most recent IRS determination or opinion letter, any summaries of material modifications, and any correspondence in the past three years with any Governmental Authority with respect to the Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(viib) With respect to each Compensation and Benefit Plan, if applicableno action, Cardinal has provided or made available suit, proceeding, hearing or, to Unitedthe Knowledge of the Company, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC investigation (other than routine undisputed claims for minimum payments); (Gbenefits) most recent determination or opinion letter issued by is pending or, to the IRS; (H) any Form 5310 or Form 5330 filed with Knowledge of the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)Company, threatened.
(viiic) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure ScheduleSchedule 4.14(c), the consummation of the transactions contemplated no payment or benefit which will or may be made by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director an Acquired Company with respect to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Code Section 280G of and the Code), without regard regulations thereunder and hereafter referred to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, as a “SERPDisqualified Individual”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any pursuant to arrangements in effect on the date of its employees that have assets through this Agreement will be characterized as a grantor trust or trusts of which Cardinal is the grantor parachute payment within the meaning of subpart ECode Section 280G(b)(2). There is no Contract to which the Company or any ERISA Affiliate is a party or by which it is bound to reimburse, part Igross up or otherwise compensate any director, subchapter J, chapter 1, subtitle A officer or employee of any Acquired Company for Taxes paid pursuant to Section 4999 or 409A of the Code that are subject to claims Code.
(d) None of creditors, the Benefit Plans and except as set forth on Section 6.03(m)(xi) Schedule 4.14(d), to the Knowledge of Cardinal’s Disclosure Schedulethe Company, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result employee benefit plan of any termination of employment prior to ERISA Affiliate is or following at any time within the Effective Time)past six years has been, and each Deferred Compensation Plan that is a SERP no Acquired Company has any liability, whether absolute or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any actioncontingent, with respect to to, any “defined benefit plan” as defined in Section 3(35) of ERISA, any “multiemployer plan” (as defined in Sections 3(37) and 4001(a)(3) of ERISA), any “multiple employer plan” within the meaning of ERISA or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and employee benefit plan subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A 413(c) of the Code, respecting any such tax, interest or penalty under “multiple employer welfare arrangement” within the meaning of Section 409A 3(40) of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit PlansERISA, or any actions taken pension plan subject to Section 302 or omitted thereunder, violate Section 409A Title IV of ERISA or Sections 412 or 430 of the Code.
(e) The Acquired Companies have no obligation to provide health insurance benefits or other welfare benefits to any current or former employees or other service providers following retirement or other termination of service, except as required by Code Section 4980B, the corresponding provisions of ERISA or other similar Laws.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Affinia Group Intermediate Holdings Inc.)
Employee Benefit Plans. For purposes of this Section 4.26, the term “Seller” includes any ERISA Affiliate.
(a) Schedule 4.26 contains an accurate and complete list of all Employee Benefit Plans. Accurate and complete copies of all the following documents with respect to each Employee Benefit Plan, to the extent applicable, have been delivered to Purchaser: (i) On Section 6.03(m)(iall documents constituting the Employee Benefit Plan, including trust agreements, insurance policies, service agreements, and formal and informal amendments thereto; (ii) the three most recently filed Forms 5500 or 5500C/R and any financial statements attached thereto; (iii) all Internal Revenue Service (“IRS”) determination letters for the Employee Benefit Plan; (iv) the most recent summary plan description and any amendments or modifications thereof; (v) all reports submitted within the preceding three years by third-party administrators, actuaries, investment managers, consultants, or other independent contractors; (vi) all notices that were issued within the preceding three years by the IRS, Department of Cardinal’s Disclosure ScheduleLabor, Cardinal has set forth a complete and accurate list or any other Governmental or Regulatory Authority with respect to the Employee Benefit Plan; (vii) written descriptions of all existing bonusnon-written Contracts relating to each Employee Benefit Plan; (viii) all memoranda, incentiveminutes, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare resolutions and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements documents describing the manner in which the Employee Benefit Plan is or has been administered or describing corrections to the administration of an Employee Benefit Plan; and (ix) all employee manuals or handbooks containing personnel or employee relations policies.
(b) Seller does not have any current Liability to any benefit plan or former arrangement other than the Employee Benefit Plans listed on Schedule 4.26 nor has Seller proposed any employee (the “Employees”), current benefit plans or former consultant (the “Consultants”) arrangements which it plans to establish or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates maintain or to which it plans to contribute or proposed any such Employeeschanges to any Employee Benefit Plans now in effect. No statement, Consultants either written or Directors are a party (the “Compensation and Benefit Plans”). Except as required oral, has been made by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor Seller to any of its Subsidiaries has Person with regard to any commitment to create any additional Compensation and Employee Benefit Plan or that was not in accordance with the Employee Benefit Plan and that could have an adverse economic consequence to modify or change any existing Compensation and Benefit PlanSeller.
(iic) Each Compensation and Seller has properly submitted all of the Employee Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is Plans intended to be qualified under Section 401(a) of the Code, to the IRS for its approval within the time prescribed therefor under applicable federal regulations. Each of the Employee Benefit Plans intended to be qualified under section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with been determined by the IRS to be qualified under section 401(a) of the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section section 501(a) of the Code) from , and each such determination remains in effect and has not been revoked. Other than the Internal Revenue Service (Employee Benefit Plans marked as “IRS”) Qualified Plans” on Schedule 4.26, no Seller has ever maintained or the Compensation and contributed to any other Employee Benefit Plan uses a prototype or volume submitter plan that is intended to be qualified under section 401(a) of the subject of an IRS opinion Code. Nothing has occurred with respect to the design or advisory letter, and Cardinal is not aware operation of any circumstances Employee Benefit Plan that could adversely affect cause the loss of such qualification or that are likely to result in exemption or the revocation imposition of any existing favorable determination letter liability, lien, penalty, or in not receiving a favorable determination letter. There is no material pending ortax under ERISA or the Code, and the Employee Benefit Plans have been timely amended to comply with current Law.
(d) With respect to the knowledge Employee Benefit Plans, Seller will have made, on or before the Closing Date, all payments required to be made by them on or before the Closing Date and will have accrued (in accordance with GAAP) as of Cardinalthe Closing Date all payments due but not yet payable as of the Closing Date, threatened legal actionso there will not have been, suit nor will there be, any Accumulated Funding Deficiencies (as defined in ERISA or claim relating to the Compensation and Benefit Plans other than routine claims for benefitsCode) or waivers of such deficiencies. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, All monies withheld from employee paychecks with respect to any Compensation and Employee Benefit Plans have been transferred to the appropriate Employee Benefit Plan that would reasonably be expected in a timely manner as required by applicable Law.
(e) All of the Employee Benefit Plans conform (and have at all times conformed) to subject Cardinal or the requirements of ERISA, the Code and any other applicable Laws. Each Employee Benefit Plan has been maintained in accordance with its documents and with all applicable provisions of its Subsidiaries the Code, ERISA and any other applicable Laws, including federal and state securities Laws. All reporting, disclosure and notice requirements of ERISA, the Code and other applicable Laws have been fully and completely satisfied with respect to a material tax or penalty imposed by either each Employee Benefit Plan.
(f) With respect to each Employee Benefit Plan, there has occurred no non-exempt “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 502 406 of ERISA) or breach of any fiduciary duty described in Section 404 of ERISA that could, if successful, result in any Liability, direct or indirect, for any Seller or any stockholder, member, officer, director, manager or employee of Seller.
(g) Seller does not sponsor, maintain or contribute to, nor has Seller ever sponsored, maintained or contributed to, or had any Liability with respect to, any employee benefit plan subject to Section 302 of ERISA, assuming for purposes of Section 4975 412 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To None of the knowledge Employee Benefit Plans is a multiemployer plan (as defined in Section 3(37) of CardinalERISA). Seller does not contribute to, there is no pending investigation nor has Seller ever contributed to or enforcement action by the PBGC, the DOL or IRS or had any other governmental agency Liability with respect to, a multiemployer plan. No Employee Benefit Plan is a “multiemployer plan” within the meaning of Section 413 of the Code. Seller does not have any plan administration responsibilities, Liabilities or fiduciary responsibilities or duties with respect to any Compensation and Benefit Planbenefit plan which is maintained by an employer that is not an ERISA Affiliate.
(h) Neither the execution and delivery of this Agreement or any of the other Transaction Documents nor the consummation of the Contemplated Transactions will (i) result in any payment (including any severance, unemployment compensation or golden parachute payment) becoming due from Seller under any of the Employee Benefit Plans, (ii) increase any benefits otherwise payable under any of Seller’s Benefit Plans, (iii) result in the acceleration of the time of payment or vesting of any such benefits to any extent, or (iv) All contributions required to be made result in any payments or benefits under the terms of any Compensation and Employee Benefit Plan or any employee benefit arrangements other agreement of Seller to be considered “excess parachute payments” under Section 280G of the Code. No payments or benefits under any collective bargaining Employee Benefit Plan or other agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has providedSeller are, or would reasonably be are expected to be required be, subject to provide, security to any Pension Plan pursuant to the disallowance of a deduction under Section 401(a)(29162(m) of the Code.
(i) Seller has not incurred any Liability for any excise, income or other taxes or penalties with respect to any Employee Benefit Plan, and no event has occurred and no circumstance exists or has existed that could give rise to any Liability. There are no pending Actions or Proceedings that have been asserted or instituted against any of the Employee Benefit Plans, the assets of any of the trusts under such plans, the plan sponsor, the plan administrator or any fiduciary of any such plan (yother than routine benefit claims), and there are no facts which could form the basis for any such Action or Proceeding. There are no investigations, audits or examinations (nor has notice been received of a potential audit or examination) has taken of any actionof the Employee Benefit Plans, any trusts under such plans, the plan sponsor, the plan administrator or omitted any fiduciary of any such plan that have been instituted or threatened by the IRS, Department of Labor or any other Government or Regulatory Authority, and there are no facts which could form the basis for any such investigation, audit or examination, and no matters are pending with respect to take any action, Employee Benefit Plan under any IRS correction program.
(j) With respect to any Employee Benefit Plan that has resulted, or is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA): (i) each such plan for which contributions are claimed as deductions under any provision of the Code is in compliance with all applicable requirements pertaining to such deduction; (ii) with respect to any welfare benefit fund (within the meaning of Section 4976(b) of the Code) that would reasonably be expected to result, result in the imposition of a lien Tax under Section 412(n4976(a) of the Code or pursuant to Code; and (iii) any Employee Benefit Plan that is a group health plan (within the meaning of Section 4980B(g)(2) of the Code) complies, and in each and every case has complied, with all of the requirements of Section 4980B of the Code, ERISA.
(v) Neither Cardinal nor any , Title XXII of its Subsidiaries has any obligations to provide retiree 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, and no Employee Benefit Plan provides health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, after an employee’s or former employee’s retirement or other than benefits mandated termination of employment except as required by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vik) Cardinal Seller does not maintain, and its Subsidiaries do does not maintain have any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect obligation to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior contribute to or following has any Liability with respect to, any benefit plan or arrangement outside the Effective Time) reasonably be expected to (A) entitle U.S., nor has Seller ever had any Employee, Consultant Liability or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, liability with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest benefit plan or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codearrangement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hi Tech Pharmacal Co Inc), Asset Purchase Agreement (Hi Tech Pharmacal Co Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i) 3.15.1 The Disclosure Schedule sets forth with respect to all United States locations of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonus, incentive, deferred compensation, the CRL Business each pension, retirement, profit-sharing, thriftsavings, bonus, incentive or deferred compensation, severance pay, vacation pay, medical, life insurance, welfare or other employee benefit plan in which employees of Recap Subco or any of the Recap Subsidiaries participate or that Recap Subco or any of the Recap Subsidiaries maintains or sponsors, or to which Recap Subco or any of the Recap Subsidiaries is required to make contributions. All pension, profit-sharing, savings, employee stock ownership, stock bonus, stock purchaseincentive or deferred compensation, restricted stockseverance pay, stock optionmedical, severance, welfare and fringe benefit plans, survivor life insurance, split dollar welfare or other life insurance employee benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” plans within the meaning of Section 3(23(3) of ERISA in which the U.S. employees of Recap Subco or any of the Recap Subsidiaries participate (a “Pension Plan”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) of ERISA), being hereinafter referred to as the "Benefit Plans" and any such multiemployer plans being hereinafter referred to as the "Multiemployer Plans") comply with all requirements of the Department of Labor (the "DOL") and that is the IRS, and with all other applicable Laws, except where the failure to comply with such Laws (individually or in the aggregate) would not reasonably be expected to result in Costs in excess of $350,000. The CRL Companies have furnished to Buyer copies of all Benefit Plans and all financial statements, actuarial reports and annual reports and returns filed with the IRS with respect to such Benefit Plans for a period of two years prior to the date hereof. To the Knowledge of Seller Parent, such financial statements, actuarial reports and annual reports and returns are true and accurate in all material respects.
3.15.2 Except as set forth in the Disclosure Schedule, each Benefit Plan intended to be qualified qualify under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with from the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax IRS as to its qualification under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29401(a) of the Code, and (y) nothing has taken occurred in the operation of any actionsuch Benefit Plan which, either individually or omitted to take any actionin the aggregate, that has resulted, or would reasonably be expected to result, in cause the loss of such qualification or the imposition of a lien any liability, penalty or tax under Section 412(n) of ERISA or the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that which would reasonably be expected to promise result in Costs in excess of $350,000.
3.15.3 No Benefit Plan which is a "defined benefit plan" (within the meaning of Section 3(35) of ERISA) (hereinafter referred to as the "Defined Benefit Plans") has incurred an "accumulated funding deficiency" (within the meaning of Section 412(a) of the Code), whether or guarantee such Employees retiree health not waived.
3.15.4 Except as set forth in the Disclosure Schedule, in the last six (6) years there has been no "reportable event" (within the meaning of Section 4043 of ERISA) for which there has been a nonwaiveable notice requirement imposed under Section 4043 of ERISA with respect to any Defined Benefit Plan.
3.15.5 To the Knowledge of Seller Parent, no "prohibited transaction" (within the meaning of Section 406 of ERISA or life insurance Section 4975(c) of the Code) has occurred with respect to any Benefit Plan.
3.15.6 None of the CRL Companies has incurred any liability to the PBGC, except for required premium payments. No notice of termination has been filed by the plan administrator (pursuant to Section 4041 of ERISA) or retiree death issued by the PBGC (pursuant to Section 4042 of ERISA) with respect to any Benefit Plan subject to ERISA. There has been no termination of any Defined Benefit Plan or other any related trust by any of the CRL Companies.
3.15.7 As of the date of the most recent actuarial report, the excess of the aggregate present value of accrued benefits over the aggregate value of the assets of any Defined Benefit Plan (computed both on a permanent termination basis and on an ongoing basis) is not more than $-0-, and there are no unfunded vested benefits (within the meaning of PBGC Reg. ss. 4006.4) with respect to any Defined Benefit Plan.
3.15.8 There are no overdue contributions which are required to be made by any of the CRL Companies to trusts in connection with any Benefit Plan that is a "defined contribution plan" (viwithin the meaning of Section 3(34) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employeesof ERISA).
(vii) With 3.15.9 Other than claims in the ordinary course for benefits with respect to each Compensation and the Benefit Plans, there are no actions, suits or claims (including claims for income taxes, interest, penalties, fines or excise taxes with respect thereto) pending with respect to any Benefit Plan, if applicableor, Cardinal has provided to the Seller Parent's Knowledge, any circumstances which would reasonably be expected to give rise to any such action, suit or made available claim (including claims for income taxes, interest, penalties, fines or excise taxes with respect thereto).
3.15.10 All material reports, returns, notices and similar documents with respect to United, true and complete copies of existing: (A) Compensation and the Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 Plans required to be filed with the IRS; (D) most recent actuarial report and financial statement; (E) , the most recent summary plan description; (F) forms filed with DOL, the PBGC (or any other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)Governmental Entity have been so filed.
(viii) 3.15.11 Except as set forth on Section 6.03(m)(viii) of Cardinal’s in the Disclosure Schedule, the consummation none of the transactions contemplated by this Agreement would notCRL Companies has any obligation to provide health or other welfare benefits to former, directly retired or indirectly (includingterminated employees in the CRL Business, without limitationexcept as specifically required under Section 4980B of the Code or Section 601 of ERISA. Each of the CRL Companies has complied with the notice and continuation requirements of Section 4980B of the Code and Section 601 of ERISA and the regulations thereunder.
3.15.12 None of the CRL Companies maintains, as a result of any termination of employment prior sponsors or contributes to and has never maintained, sponsored or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director contributed to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Multiemployer Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation 3.15.13 The Disclosure Schedule sets forth all benefit plans, programs contracts and arrangements covering non-U.S. CRL Business employees ("Non-U.S. Benefit Plans"). Each of the CRL Companies and Sellers is and following the Stage 2 Reorganization each of Recap Subco and each Recap Subsidiary will be in compliance with applicable Laws and collective bargaining agreements with respect to all Non-U.S. Benefit Plans except where the failure to comply with such Laws and agreements (individually or arrangements in the payments under which aggregate) would not reasonably be expected to be deductible as a result in Costs in excess of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) $350,000. Except as set forth on Section 6.03(m)(x) of Cardinal’s in the Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans unfunded liabilities (each, a “SERP”determined in accordance with GAAP) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Non-U.S. Benefit Plan Plans that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as are defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codebenefit plans.
Appears in 2 contracts
Samples: Recapitalization Agreement (Charles River Laboratories Inc), Recapitalization Agreement (Charles River Laboratories Holdings Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i4.1(o)(i) of Cardinal’s the LFC Disclosure Schedule lists each “employee welfare benefit plan” (as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) maintained by LFC or any of the LFC Subsidiaries or to which LFC or any of the LFC Subsidiaries contribute or are required to contribute, including any multiemployer welfare plan (such employee welfare benefit plans being hereinafter collectively referred to as the “Welfare Benefit Plans”) and sets forth the amount of any liability of LFC or any of the LFC Subsidiaries for contributions more than thirty days past due with respect to each Welfare Benefit Plan as of the date hereof and as of the end of any subsequent month ending prior to the Closing; except as set forth in Section 4.1(o)(i) of the LFC Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonusno Welfare Benefit Plan provides for continuing benefits or coverage for any participant, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current beneficiary or former employee (the “Employees”), current after such participant’s or former consultant (the “Consultants”) or current or former director (the “Directors”) employee’s termination of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except employment except as may be required by Section 4980B of the terms Code and Sections 601-608 of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.ERISA;
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, Section 4.1(o)(ii) of the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an LFC Disclosure Schedule lists each “employee pension benefit plan” within the meaning of (as defined in Section 3(2) of ERISA and not exempted under Section 4(b) or 201 of ERISA) maintained by LFC or any of the LFC Subsidiaries or to which LFC or any of the LFC Subsidiaries contribute or are required to contribute, including any multiemployer plan (a as defined in Section 3(37) of ERISA) (such employee pension benefit plans being hereinafter collectively referred to as the “Pension PlanBenefit Plans”);
(iii) Except as set forth on Section 4.1(o)(iii) of the LFC Disclosure Schedule, neither LFC nor any of the LFC Subsidiaries maintains, has or is a party to any plan, program, agreement, arrangement, understanding or commitment, whether written or oral, for the benefit of any of its employees, directors or officers relating to any of the following: severance pay, deferred compensation, bonuses, stock options, employee stock purchases, restricted stock, excess benefits, incentive compensation, stock bonuses, cash bonuses, golden parachutes, life insurance, rabbi trusts, cafeteria plans, dependent care, unfunded plans or any other employee-related plans, programs, agreements, arrangements or commitments (other than normal policies concerning holidays, vacations and salary continuation during short absences for illness or other reasons), or any program, plan, commitments, or practice of purchasing or otherwise compensating employees, including officers, for accrued vacation or sick leave upon termination of employment (such other compensatory programs being hereinafter collectively referred to as “Other Programs”);
(iv) All of the Pension Benefit Plans and Welfare Benefit Plans and any related trust agreements or insurance or annuity contracts (or any other funding instruments) and all Other Programs comply currently, and have complied in the past, both as to form and operation, with the provisions of ERISA, the Code and with all other applicable laws, rules and regulations governing the establishment and operation of the Pension Benefit Plans, Welfare Benefit Plans and all Other Programs; except as set forth on Section 4.1(o)(iv) of the LFC Disclosure Schedule, all necessary governmental approvals relating to the establishment of the Pension Benefit Plans have been obtained; and with respect to each Pension Benefit Plan that is intended to be tax-qualified under Section 401(a) or 403(a) of the Code has received Code, a favorable determination letter or has applied for a favorable determination letter in compliance with as to the qualification under the Code (including a determination that the related trust under of each such Compensation and Pension Benefit Plan is exempt from tax under Section 501(a) of the Code) from and each material amendment thereto has been issued by the Internal Revenue Service (“IRS”) and nothing has occurred since the date of the last such determination letter which resulted in, or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.determination);
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii4.1(o)(v) of Cardinal’s the LFC Disclosure Schedule, each Welfare Benefit Plan, each Pension Benefit Plan and each Other Program has been administered in compliance with the requirements of the Code, ERISA, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and all other applicable laws, and all reports and disclosures required by ERISA, the Code and any other applicable laws with respect to each Welfare Benefit Plan, each Pension Benefit Plan and each Other Program have been timely filed;
(vi) Except as set forth on Section 4.1(o)(vi) of the LFC Disclosure Schedule, neither LFC nor any LFC Subsidiary nor any plan fiduciary of any Welfare Benefit Plan or Pension Benefit Plan has engaged in a breach of fiduciary duty (as defined in Section 404 of ERISA) with respect to any Welfare Benefit Plan, Pension Benefit Plan or Other Program or in any transaction in violation of Section 406 of ERISA (for which transaction no exemption exists under Section 408 of ERISA) or in any “prohibited transaction” as defined in Section 4975(c)(1) of the Code (for which no exemption exists under Section 4975(c)(2) or 4975(d) of the Code);
(vii) Except as set forth on Section 4.1(o)(vii) of the LFC Disclosure Schedule, neither LFC nor any LFC Subsidiary nor any corporation or other trade or business controlled by or under common control with LFC (as determined under Sections 414(b) and 414(c) of the Code) (“Common Control Entity”) is, or has been within the past three years, a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Pension Benefit Plan subject to the provisions of Title IV of ERISA, nor has LFC, any LFC Subsidiary or a Common Control Entity maintained or participated in any employee pension benefit plan (defined in Section 3(2) of ERISA) subject to the provision of Title IV of ERISA. In addition, except as set forth on Section 4.1(o)(vii) of the LFC Disclosure Schedule, neither LFC nor any LFC Subsidiary nor a Common Control Entity (i) is a party to a collective bargaining agreement, (ii) has maintained or contributed to, or has participated in or agreed to participate in, a multiemployer plan (as defined in Section 3(37) of ERISA), or (iii) has made a complete or partial withdrawal from a multiemployer plan (as defined in Section 3(37) of ERISA) so as to incur withdrawal liability as defined in Section 4201 of ERISA (without regard to subsequent reduction or waiver of such liability under Section 4207 or 4208 of ERISA);
(viii) True and complete copies of each Welfare Benefit Plan, each Pension Benefit Plan and each Other Program, related trust agreements or insurance or annuity contracts (or any other funding instruments), summary plan descriptions, the most recent determination letter issued by the Internal Revenue Service with respect to each Pension Benefit Plan, the most recent application for a determination letter from the Internal Revenue Service with respect to each Pension Benefit Plan, the Annual Reports on Form 5500 Series filed with any governmental agency for each Welfare Benefit Plan, Pension Benefit Plan and Other Program for the three most recent plan years, the Summary Annual Report provided to participants with respect to each Welfare Benefit Plan, Pension Benefit Plan, and Other Program for the three most recent plan years, and any correspondence to or from the IRS, Department of Labor, or bank examiner with respect to any Welfare Benefit Plan, Pension Benefit Plan, or Other Program during the three most recent plan years, have been furnished to IBC;
(ix) All Welfare Benefit Plans, Pension Benefit Plans, and Other Programs related trust agreements or insurance or annuity contracts (or any other funding instruments), are legally valid and binding and in full force and effect and, except as set forth on Section 4.1(o)(ix) of the LFC Disclosure Schedule, there are no promised increases in benefits (whether expressed, implied, oral or written) under any of these plans nor any obligations, commitments or understandings to continue any of these plans, (whether expressed, implied, oral or written) except as required by Section 4980B of the Code and Sections 601-608 of ERISA or under the terms of such plans; except as set forth on Section 4.1(o)(ix) of the LFC Disclosure Schedule, LFC, its subsidiaries, or a Common Control Entity has the right to modify, amend, or terminate each Welfare Benefit Plan, Pension Benefit Plan, and Other Program at any time; except as set forth on Section 4.1(o)(ix) of the LFC Disclosure Schedule, the consummation termination of any Welfare Benefit Plan, Pension Benefit Plan, or Other Program would not accelerate or increase any benefits payable under such plan; and except as set forth on Section 4.1(o)(ix) of the transactions contemplated by this Agreement would notLFC Disclosure Schedule, directly or indirectly (including, without limitation, as a result in the event of termination of any termination of employment prior Welfare Benefit Plan, Pension Benefit Plan, or Other Program, neither LFC, nor its subsidiaries, would have any liability with respect to or following the Effective Time) reasonably be expected to (A) entitle any Employeesuch plan, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in payment of benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected pursuant to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.such plan;
(x) Except as set forth on Section 6.03(m)(x4.1(o)(x) of Cardinal’s the LFC Disclosure Schedule, there are no claims pending with respect to, or under, any Pension Benefit Plan, Welfare Benefit Plan or any Other Program, other than routine claims for plan benefits, and there are no disputes or litigation pending or threatened with respect to any such plans; and all contributions, premiums, or other payments due from LFC or any of the LFC Subsidiaries have been fully paid or adequately provided for and disclosed on the books and financial statements of LFC and the LFC Subsidiaries;
(xi) Except as set forth on Section 4.1(o)(xi) of the LFC Disclosure Schedule, no action has been taken, nor has there been a resultfailure to take any action that would subject any Person or entity to any liability for any income, directly excise or indirectlyother tax or penalty in connection with any Pension Benefit Plan, Welfare Benefit Plan or any Other Program, other than for income taxes due with respect to benefits paid; and
(xii) Except as otherwise set forth in Section 4.1(o)(xii) of the LFC Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment to be made by this Agreement LFC or any of the LFC Subsidiaries (including, without limitation, as a result of any termination of employment prior to or following the Effective Time)severance, neither United nor Cardinalunemployment compensation, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess golden parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard or otherwise) becoming due to whether such payment is reasonable compensation for personal services performed any employee, director or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any actionconsultant, or omitted to take (ii) increase any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized benefits otherwise payable under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failureWelfare Benefit Plan, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Pension Benefit PlansPlan, or any actions taken or omitted thereunder, violate Section 409A of the CodeOther Program.
Appears in 2 contracts
Samples: Merger Agreement (Local Financial Corp /Nv), Merger Agreement (International Bancshares Corp)
Employee Benefit Plans. SCHEDULE 4.14 lists (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, any "employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans" as described in the Employee Retirement Income Security Act of 1974, survivor as amended, and the rules and regulations promulgated thereunder ("ERISA") (other than a defined contribution pension plan not requiring any contribution by Borrower, paid time-off policy or vacation/holiday/sick leave policy, and employee group life and health plans that are fully funded through commercial insurance, split dollar or other life insurance benefit plan, employment or severance agreements ); and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) any defined benefit "employee pension benefit plans" (as defined in ERISA). Neither Borrower nor, to the best knowledge of Borrower, any other person has engaged in a transaction with respect to any employee benefit plan listed or required to be listed on SCHEDULE 4.14 which could subject any such plan, Borrower or the Lender to a penalty under ERISA or a tax under the Internal Revenue Code of 1986, as amended (the "Code"), except for those transactions which could not reasonably be expected to have a Material Adverse Effect. Each Compensation and Benefit Plan of the employee benefit plans listed, or required to be listed, on SCHEDULE 4.14 has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, including without limitation ERISA, except for any such failure which would not subject Borrower or the Code, Lender to any penalty or other liability and except for any such failure which would not have an adverse effect upon the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, applicable plan or any regulations participant therein. Borrower has not incurred, nor presently expects to incur, any liability under Title IV of ERISA that could result in liability to the Lender or rules promulgated thereunder, and all 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 madeBorrower. Each Compensation and Benefit Plan employee benefit plan listed or required to be listed on SCHEDULE 4.14 that is an “employee pension benefit plan” a group health plan within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a5000(b)(1) of the Code has received a favorable determination letter or has applied for a favorable determination letter Code, is in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under provisions of Section 501(a4980B(f) of the Code) from the Internal Revenue Service (“IRS”) , except for any such non-compliance which would not subject Borrower or the Compensation Lender to any penalty or liability and Benefit Plan uses a prototype except for any such failure which would not have an adverse effect upon the applicable plan or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letterparticipant therein. There is no material not any pending or, to the best knowledge of CardinalBorrower, threatened legal actionclaim by or on behalf of any employee benefit plan, suit by any employee covered under any such plan or claim relating to the Compensation and Benefit Plans otherwise involving any employee benefit plan (other than routine non-contested claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Convertible Loan Agreement (Caminosoft Corp), Convertible Loan Agreement (Caminosoft Corp)
Employee Benefit Plans. (ia) On The attached Employee Benefits Schedule lists or describes each “employee benefit plan” (as such term is defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate list ERISA maintained or contributed to by (or required to be maintained or contributed to by) Seller maintains on behalf of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee of the Business, and each other material plan, arrangement, policy or understanding (whether written or oral) relating to retirement, compensation, deferred compensation, bonus, severance, fringe benefits or any other employee benefits maintained or contributed to by (or required to be maintained or contributed to by) Seller for the “Employees”), benefit of any current or former consultant (employee of the Business. Each item listed or required to be listed on the Employee Benefits Schedule is referred to herein as a “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Seller Employee Benefit Plan.”
(b) No Seller Employee Benefit Plan is (i) a “defined benefit plan” as defined in Section 3(35) of ERISA or any other plan subject to the funding requirements of Section 412 of the Code or Section 302 of Title IV of ERISA that could reasonably be expected to result in any liability with respect to Buyer, (ii) a “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA, or (iii) an employee benefit plan, program or arrangement that provides for post-employment medical, life insurance or other welfare-type benefits (other than health continuation coverage required by COBRA).
(c) Each Compensation and Seller Employee Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under within the meaning of Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination to that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) effect from the Internal Revenue Service (“IRS”Service, and, to the Knowledge of Seller, nothing has occurred since the date of such letter that cannot be cured within the remedial amendment period provided by Section 401(b) or of the Compensation and Code which would prevent any such Seller Employee Benefit Plan uses a prototype from remaining so qualified. Except as set forth and described in reasonable detail on the attached Employee Benefits Schedule or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is could not aware of any circumstances that could adversely affect such qualification or that are likely reasonably be expected to result in any liability to Buyer, each Seller Employee Benefit Plan and any related trust, insurance contract or fund has been maintained in all material respects in accordance with its respective terms and the revocation terms of any existing favorable determination letter applicable collective bargaining agreements and in compliance with all applicable laws and regulations, including ERISA and the Code.
(d) Except as set forth and described in reasonable detail on the attached Employee Benefits Schedule, none of Seller Employee Benefit Plans obligates Seller to pay any separation, severance, termination or similar benefit solely as a result of any transaction contemplated by this Agreement or solely as a result of a change in control or ownership within the meaning of Section 280G of the Code.
(e) Except as set forth on the attached Employee Benefits Schedule, (i) no asset of Seller that is to be acquired by Buyer, directly or indirectly, pursuant to this Agreement is subject to any Lien under ERISA or the Code; (ii) Seller has not receiving a favorable determination letter. There is no material pending or, incurred any liability under Title IV of ERISA (other than for contributions not yet due) or to the knowledge Pension Benefit Guaranty Corporation (other than for payment of Cardinalpremiums not yet due) with respect to any Seller Employee Benefit Plan; and (iii) there are no pending or threatened actions, threatened legal actionsuits, suit investigations or claim relating claims with respect to the Compensation and any Seller Employee Benefit Plans Plan (other than routine claims for benefits. Neither Cardinal nor ) which could result in any of its Subsidiaries has engaged in a transactionliability to Buyer (whether direct or indirect), and no facts which could give rise to (or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of give rise to) any such transaction expired as actions, suits, investigations or claims to the Knowledge of the date hereofSeller.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(viif) With respect to each Compensation and Seller Employee Benefit PlanPlan listed on the Employee Benefits Schedule, if applicable, Cardinal Seller has provided or made available furnished to United, Buyer true and complete copies of existing: (Ai) Compensation the plan documents, summary plan descriptions and Benefit Plan documents summaries of material modifications and amendments thereto; other material employee communications, (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (Eii) the most recent summary plan description; determination letter received from the Internal Revenue Service, (Fiii) forms filed with the PBGC Form 5500 Annual Report (including all schedules and other than attachments for minimum payments); (G) the most recent determination three years), (iv) all related trust agreements, insurance contracts or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; other funding agreements which implement such plans and (Iv) most recent nondiscrimination tests performed under ERISA and the Code (all contracts relating to each such plan, including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provideragreements, as defined under Section 409A of the Codeinsurance contracts, respecting any such tax, interest or penalty under Section 409A of the Code, investment management agreements and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Coderecordkeeping agreements.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Casual Male Retail Group Inc)
Employee Benefit Plans. (a) Seller has Previously Disclosed all stock option, employee stock purchase and stock bonus plans, qualified pension or profit-sharing plans, any deferred compensation, consultant, bonus or group insurance contract or any other incentive, health and welfare or employee benefit plan or agreement maintained for the benefit of employees or former employees of Seller or any Seller Subsidiary (the "Seller Employee Plans"), whether written or oral, and Seller has previously furnished to Buyer accurate and complete copies of the same (including amendments and agreements relating thereto) together with, in the case of qualified plans, (i) On Section 6.03(m)(ithe most recent actuarial and financial reports prepared with respect thereto, (ii) of Cardinal’s Disclosure Schedulethe most recent annual reports filed with any Governmental Entity with respect thereto, Cardinal has set forth a complete and accurate list of (iii) all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare rulings and fringe benefit plans, survivor life insurance, split dollar determination letters and any open requests for rulings or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Planletters that pertain thereto.
(iib) Each Compensation and Benefit None of Seller, any Seller Subsidiary, any Seller Employee Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is constituting an “"employee pension benefit plan” " within the meaning of Section 3(2) of ERISA ("Seller Defined Benefit Plan") or, to the best of Seller's knowledge, any fiduciary of such Seller Defined Benefit Plan, has incurred any material liability to the PBGC or the IRS with respect to any such Seller Defined Benefit Plan. To the best of Seller's knowledge, no reportable event under Section 4043(b) of ERISA has occurred with respect to any Seller Defined Benefit Plan.
(c) Neither Seller nor any Seller Subsidiary participates in or has incurred any liability under Section 4201 of ERISA for a “Pension Plan”complete or partial withdrawal from a multi-employer plan (as such term is defined in ERISA).
(d) and that A favorable determination letter has been issued by the IRS with respect to each Seller Defined Benefit Plan which is intended to be qualify under Section 401 of the Code to the effect that such Seller Defined Benefit Plan is qualified under Section 401(a) 401 of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance Code, and the trust associated with the Code (including a determination that the related trust under such Compensation and Seller Defined Benefit Plan is tax exempt from tax under Section 501(a501 of the Code. No such letter has been revoked or, to the best of Seller's knowledge, is threatened to be revoked, and Seller does not know of any ground on which such revocation may be based. Neither Seller nor any Seller Subsidiary has any liability under any such Seller Defined Benefit Plan that is not reflected on the consolidated statement of financial condition of Seller at December 31, 1998 or the notes thereto included in Seller Financial Statements, other than liabilities incurred in the ordinary course of business in connection therewith subsequent to the date thereof.
(e) To the best of Seller's knowledge, no prohibited transaction (which shall mean any transaction prohibited by Section 406 of ERISA and not exempt under Section 408 of ERISA or Section 4975 of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit has occurred with respect to any Seller Employee Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to which would result in the revocation imposition, directly or indirectly, of a material excise tax under Section 4975 of the Code or otherwise have a Material Adverse Effect on Seller.
(f) Full payment has been made (or proper accruals have been established) of all contributions which are required for periods prior to the date hereof, and full payment will be so made (or proper accruals will be so established) of all contributions which are required for periods after the date hereof and prior to the Effective Time, under the terms of each Seller Employee Plan or ERISA; except as disclosed in the Seller Financial Statements, no accumulated funding deficiency (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, exists with respect to any existing favorable determination letter or in not receiving a favorable determination letter. There Seller Defined Benefit Plan, and there is no "unfunded current liability" (as defined in Section 412 of the Code) with respect to any Seller Defined Benefit Plan.
(g) To the best of Seller's knowledge, Seller Employee Plans have been operated in compliance in all material respects with the applicable provisions of ERISA, the Code, all regulations, rulings and announcements promulgated or issued thereunder and all other applicable governmental laws and regulations. All contributions required to be made to Seller Employee Plans at the date hereof have been made, and all contributions required to be made to Seller Employee Plans as of the Effective Time will have been made as of such date.
(h) There are no pending or, to the best knowledge of CardinalSeller, threatened legal action, suit or claim relating to the Compensation and Benefit Plans claims (other than routine claims for benefits. Neither Cardinal nor ) by, on behalf of or against any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Seller Employee Plans or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal trust related thereto or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Planfiduciary thereof.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Hudson River Bancorp Inc), Merger Agreement (SFS Bancorp Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i4.11(a) of Cardinal’s the FA Disclosure Schedule, Cardinal has set Schedule sets forth a true and complete and accurate list of all existing bonuseach material employment, incentive, bonus, deferred compensation, profit-sharing, pension, retirement, profit-sharingvacation, thriftholiday, savingssick pay, employee stock ownershipcafeteria, stock bonusfringe benefit, stock purchasemedical, restricted stockdisability, stock optionretention, severance, welfare termination, change in control, equity-based compensation and fringe benefit plans, survivor life insurance, split dollar other compensation or other life insurance benefit plan, employment policy, program, agreement or severance agreements and all similar practices, policies and arrangements in which (whether written or oral) providing compensation or other benefits to any current or former director, officer, employee (the “Employees”), current or former consultant (the “Consultants”) or current to any dependent or former director (the “Directors”beneficiary thereof) of Cardinal FA, maintained, sponsored or contributed to by FA or any of its Subsidiaries participates Subsidiaries, or to under which any such Employees, Consultants FA or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment obligation or liability, whether actual or contingent (each a “FA Benefit Plan”). For purposes of this Section 4.11(a), all employment agreements with members of FA Senior Management shall be deemed “material”.
(b) With respect to create each material FA Benefit Plan, FA has delivered or made available to GSM complete and accurate copies of (i) such FA Benefit Plan, including any additional Compensation amendment thereto (or, in the case of any unwritten FA Benefit Plan, a written description thereof), (ii) each trust, insurance, annuity or other funding contract related thereto, (iii) the most recent summary plan description and any summary of material modifications (if any) prepared for each FA Benefit Plan and (iv) the two most recent financial statements and actuarial or other valuation reports prepared with respect thereto. Except as specifically provided in the foregoing documents delivered or made available to GSM, there are no amendments to any material FA Benefit Plan that have been adopted or approved nor has FA or any of its Subsidiaries undertaken to make any such amendments or to modify adopt or change approve any existing Compensation and new material FA Benefit Plan.
(iic) Each Compensation and FA Benefit Plan has been operated and administered in all material respects in accordance with its terms and with all applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, Law and all filings, disclosures and notices pension commitments have been duly externalized if 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 madeLaw. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter Payments or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and of the FA Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any Plans as of its Subsidiaries is a party the date of this Agreement have been timely made or or, if not yet due, have been properly reflected on Cardinal’s financial statementsthe most recent consolidated balance sheet prior to the date of this Agreement. None With respect to the FA Benefit Plans, no event has occurred and, to the Knowledge of CardinalFA, any there exists no condition or set of its Subsidiaries or any ERISA Affiliate (x) has provided, or would circumstances which could reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, result in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAFA Material Adverse Effect.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiid) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly has not had or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to have, individually or in the aggregate, a FA Material Adverse Effect, all FA Benefit Plans 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 deductible funded and/or book-reserved, are fully funded and/or book reserved, as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunderappropriate, based upon reasonable actuarial assumptions.
(xe) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedulerequired by Law, as a resultno FA Benefit Plan provides health, directly medical, life insurance or indirectly, of the transactions contemplated by this Agreement other welfare benefits with respect to current or former employees (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee beneficiaries) of Cardinal FA or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who after retirement or other termination of employment (other than coverage or benefits the full cost of which is a “disqualified individual” borne by the current or former employee (as such terms are defined in Section 280G or any of the Codetheir beneficiaries)), without regard and no circumstances exist that could result in FA or any of its Subsidiaries becoming obligated to whether provide any such payment is reasonable compensation for personal services performed or to be performed in the futurebenefits.
(xif) As The consummation of the Effective DateTransactions (alone or in conjunction with any other event, there are no supplemental employment retirement plans including any termination of employment) will not (eachi) entitle any employee to a bonus, a “SERP”severance or change in control payment, (ii) accelerate the time of payment or non-qualified deferred compensation plans vesting or trigger any payment or funding (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xiotherwise) of Cardinal’s Disclosure Schedulecompensation or benefits, no such grantor trusts are required increase the amount payable or trigger any other material obligation pursuant to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and FA Benefit PlansPlans or (iii) result in any breach or violation of, or default under, or limit FA’s right to amend, modify or terminate, any actions taken or omitted thereunder, violate Section 409A of the CodeFA Benefit Plan.
Appears in 2 contracts
Samples: Business Combination Agreement (Globe Specialty Metals Inc), Business Combination Agreement (Globe Specialty Metals Inc)
Employee Benefit Plans. (a) Schedule 3.15 lists (i) On each "employee pension benefit plan," as defined in Section 6.03(m)(i3(2) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974, Cardinal as amended ("ERISA"), (other than a ViComp Multiemployer Plan) maintained by ViComp, or to which ViComp makes or has set forth made contributions (the "ViComp Pension Plans"); (ii) each "employee welfare benefit plan," as defined in Section 3(l) of ERISA, (other than a complete ViComp Multiemployer Plan) maintained by ViComp, or to which ViComp makes or has made contributions (the "ViComp Welfare Plans"); (iii) each "multiemployer plan," as defined in Section 4001(a)(3) of ERISA, maintained by ViComp, or to which ViComp makes or, at any time during the last six years, has made contributions (the "ViComp Multiemployer Plans") and accurate list of all existing (iv) each collective bargaining, bonus, incentive, deferred compensation, pension, retirement, profit-profit sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit compensation or other plans, survivor life insuranceagreements, split dollar trusts, funds or arrangements (other life insurance than a ViComp Pension Plan, ViComp Welfare Plan or ViComp Multiemployer Plan) maintained by ViComp for the benefit planof its directors, employment officers or employees, and each employment, consulting, severance agreements or indemnification arrangement or understanding between ViComp, on the one hand, and all similar practices, policies and arrangements in which any current or former employee directors, officers or other employees (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”affiliates thereof) of Cardinal or any of its Subsidiaries participates or to which any such EmployeesViComp, Consultants or Directors are a party on the other hand (the “Compensation and collectively "ViComp Benefit Plans”Arrangements"). Except as required by the terms of this Agreement ViComp has no plan or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedulecommitment, neither Cardinal nor any of its Subsidiaries has any commitment whether legally binding or not, to create any additional Compensation and ViComp Pension Plans, ViComp Welfare Plans or ViComp Benefit Plan Arrangements (collectively, "ViComp Employee Plans") or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit ViComp Employee Plan that is an “would affect any employee pension benefit plan” within or former employee of ViComp, except as may be required to maintain the meaning qualified status of Section 3(2) of ERISA (a “any ViComp Pension Plan”) and that is Plans which are intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(viib) With respect to each Compensation and Benefit Planof the ViComp Employee Plans, if applicable, Cardinal ViComp has provided or heretofore made available to UnitedDigital true, true complete and complete correct copies of existing: (A) Compensation all existing material documents related to such ViComp Employee Plans, including, but not limited to, a copy of the plan or arrangement and Benefit Plan documents and amendments theretorelated trust or other funding vehicle, if any; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination , if any, and all written material employee communications related to such plan or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRSarrangement since December 31, 1995; and (I) most recent nondiscrimination tests performed under ERISA and any other contracts related to the Code (including 401(k) and 401(m) tests)plan or arrangement with respect to which ViComp may have material liability.
(viiic) Except as set forth disclosed on Section 6.03(m)(viii) Schedule 3.15, neither of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly ViComp nor any ViComp Welfare Plan has any present or indirectly (including, without limitation, as a result of future obligation to make any termination of employment prior payment to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to any present or as part former employee of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries ViComp pursuant to any obligation to report any amount or withhold any amount as includable in income and subject to taxretiree medical benefit plan, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Coderetiree ViComp Welfare Plan.
Appears in 2 contracts
Samples: Merger Agreement (Digital Video Systems Inc), Merger Agreement (Digital Video Systems Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i4.01(t)(i) of Cardinal’s the Buyer Disclosure Schedule, Cardinal has set forth Schedule contains a complete and accurate list of all existing material bonus, incentive, deferred compensation, pensionpension (including, without limitation, Buyer Pension Plans, as defined below), retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and (including, without limitation, “welfare plans” within the meaning of Section 3(1) of ERISA, fringe benefit plans, survivor life insuranceemployment, split dollar or other life insurance benefit planchange in control, employment retention or severance agreements, consulting agreements or arrangements and all similar practices, policies and arrangements maintained or contributed to (currently or within the last six years) by (A) Buyer or any Buyer Subsidiary and in which any current employee or former employee (the “Buyer Employees”), current consultant or former consultant (the “Buyer Consultants”) ), officer or current former officer (the “Buyer Officers”), or director or former director (the “Buyer Directors”) of Cardinal Buyer or any of its Subsidiaries Buyer Subsidiary participates or to which any such Buyer Employees, Consultants Buyer Consultants, Buyer Officers or Buyer Directors are a party parties or (B) any Buyer ERISA Affiliate (as defined below) (collectively, the “Buyer Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Neither Buyer nor any of its Subsidiaries Buyer Subsidiary has any commitment to create any additional Buyer Compensation and Benefit Plan or to modify or change any existing Buyer Compensation and Benefit Plan, except to the extent required by law and as otherwise contemplated by Sections 6.02 and 7.02 of this Agreement.
(ii) Each Except in a manner that would not reasonably be expected to have a material adverse effect on Buyer, each Buyer Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Buyer Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Buyer Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Buyer Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation IRS and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal Buyer is not aware of any circumstances that could adversely affect such qualification or that are likely would reasonably be expected to result in the revocation of any existing favorable determination letter or in not receiving a such favorable determination letter. Each Buyer Compensation and Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) has been operated in material compliance with Section 409A of the Code, IRS Notice 2005-1, Treasury Regulations issued under Section 409A of the Code, and any subsequent guidance relating thereto, and no additional tax under Section 409A(a)(1)(B) of the Code has been or is reasonably expected to be incurred by a participant in any such Buyer Compensation and Benefit Plan. There is no material pending or, to the knowledge of CardinalBuyer, threatened threatened, legal action, suit or claim relating to the Buyer Compensation and Benefit Plans other than routine claims for benefitsbenefits thereunder. Neither Cardinal Buyer nor any of its Subsidiaries Buyer Subsidiary has engaged in a transaction, or omitted to take any action, with respect to any Buyer Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Buyer or any of its Subsidiaries Buyer Subsidiary to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans liability (other than for payment of premiums to the PBGC that have been made or will be made on a timely basis) under Title IV of ERISA has been or is expected to be incurred by Buyer or any Buyer Subsidiary with respect to any ongoing, frozen or terminated “single-employer plan,” within the meaning of Section 4001(a)(15) of ERISA, currently maintainedor formerly maintained by any of them, or maintained within the last six years, by Cardinal or any single-employer plan of its Subsidiaries or any entity (an a “Buyer ERISA AffiliateAffiliate Plan”) that is considered one employer with Cardinal Buyer under Section 4001(a)(14) of ERISA or Section 414(b), (c) or (cm) of the Code is (a “Buyer ERISA Affiliate”). None of Buyer, any Buyer Subsidiary nor any Buyer ERISA Affiliate has contributed, or was subject has been obligated to Title IV of ERISA or is or was contribute, to a multiemployer multi-employer plan under Subtitle E of Title IV of ERISA (as defined in ERISA Sections 3(37)(A) and 4001(a)(3)) at any time since September 26, 1980. 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 Buyer Compensation and Benefit Plan or by any Buyer ERISA Affiliate Plan within the 12-month period ending on the date hereof, and no such notice will be required to be filed as a result of the transactions contemplated by this Agreement. To the knowledge of CardinalThe PBGC has not instituted proceedings to terminate any Buyer Pension Plan or Buyer ERISA Affiliate Plan and, there to Buyer’s knowledge, no condition exists that presents a material risk that such proceedings will be instituted. There is no pending investigation or enforcement action by the PBGC, the DOL or DOL, the IRS or any other governmental agency Governmental Authority with respect to any Buyer Compensation and Benefit Plan and to Buyer’s knowledge, no investigation or action is threatened or anticipated. Except as disclosed in Section 4.01(t)(iii) of the Buyer Disclosure Schedule, under each Buyer Pension Plan and Buyer ERISA Affiliate Plan, as of the date of the most recent actuarial valuation performed prior to the date of this Agreement, the actuarially determined present value of all “benefit liabilities,” within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in such actuarial valuation of such Buyer Pension Plan or Buyer ERISA Affiliate Plan), did not exceed the then current value of the assets of such Buyer Pension Plan or Buyer ERISA Affiliate Plan and since such date there has been neither an adverse change in the financial condition of such Buyer Pension Plan or Buyer ERISA Affiliate Plan nor any amendment or other change to such Buyer Pension Plan or Buyer ERISA Affiliate Plan that would increase the amount of benefits thereunder that reasonably could be expected to change such result and that, individually or in the aggregate, would have a material adverse effect on Buyer.
(iv) All contributions required to be made under the terms of any Buyer Compensation and Benefit Plan or Buyer ERISA Affiliate Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal Buyer or any of its Subsidiaries Buyer Subsidiary is a party have been timely made or have been reflected on Cardinal’s financial statementsthe Buyer Financial Statements. Neither any Buyer Pension Plan nor any Buyer ERISA Affiliate Plan has an “accumulated funding deficiency” (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA, and all required payments to the PBGC with respect to each Buyer Pension Plan and each Buyer ERISA Affiliate Plan have been made on or before their due dates. None of CardinalBuyer, any of its Subsidiaries or Buyer Subsidiary nor any Buyer ERISA Affiliate (xA) has provided, or would reasonably be expected to be required to provide, security to any Buyer Pension Plan or to any Buyer ERISA Affiliate Plan pursuant to Section 401(a)(29) of the Code, and (yB) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAERISA that, individually or in the aggregate, would have a material adverse effect on Buyer.
(v) Neither Cardinal Except as disclosed in Section 4.01(t)(v) of the Buyer Disclosure Schedule, neither Buyer nor any of its Subsidiaries Buyer Subsidiary has any obligations to provide retiree health and benefits or life insurance, retiree long-term care insurance or other retiree death or other benefits under any Buyer Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal Buyer and its the Buyer Subsidiaries do not maintain any foreign Buyer Compensation and Benefit Plans covering foreign EmployeesPlans.
(vii) With respect to each material Buyer Compensation and Benefit Plan, if applicable, Cardinal Buyer has provided or made available to United, Seller true and complete copies of the existing: (A) Buyer Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (ED) the most recent summary plan description; (FE) forms filed with the PBGC within the past year (other than for minimum premium payments); (GF) most recent determination or opinion letter issued by the IRS; and (HG) any Form 5310 5310, Form 5310A, Form 5300 or Form 5330 filed within the past year with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on disclosed in Section 6.03(m)(viii4.01(t)(viii) of Cardinal’s the Buyer Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) ), reasonably be expected to (A) entitle any Buyer Employee, Buyer Consultant or Buyer Director to any payment from Buyer or any Buyer Affiliate (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Buyer Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Buyer Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Wesbanco Inc), Merger Agreement (Old Line Bancshares Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has Except as set forth a complete and accurate list of all existing bonusin SCHEDULE 3.17, incentiveneither the Company nor any Plan Affiliate (as defined in SECTION 10.10 below) has maintained, deferred compensationsponsored, pensionadopted, retiremententered into, profit-sharing, thrift, savings, made contributions to or obligated itself to make contributions to or to pay any benefits or grant rights under or with respect to or made any commitments to create any employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment program or severance agreements and all similar practices, policies and arrangements in which arrangement for the benefit of any current or former employee employee, officer, director or consultant of the Company or its predecessors (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any beneficiaries or dependents of its Subsidiaries participates such individuals) whether or not written or pursuant to a collective bargaining agreement, which has been in effect at any time since January 1, 1996 or which could give rise to or result in the Company or Buyer having any debt, liability, claim or obligation of any kind or nature, whether accrued, absolute, contingent, direct, indirect, known or unknown, perfected or inchoate or otherwise and whether or not due or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, become due including, but not limited towithout limitation, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “"employee pension benefit plan” within the meaning of " (as defined in Section 3(2) of ERISA (a “as defined in SECTION 10.10 below)), "employee welfare benefit plan" (as defined in Section 3(1) of ERISA), "multi-employer plan" (as defined in Section 3(37) of ERISA), "employee benefit plan" (as defined in Section 3(3) of ERISA), plan of deferred compensation, medical plan, life insurance plan, disability plan, dental plan or other plan providing, personnel policy (including but not limited to vacation time, holiday pay, bonus programs, moving expense reimbursement programs and sick leave), excess benefit plan, bonus or incentive plan (including but not limited to stock options, restricted stock, phantom stock, stock bonus and deferred bonus plans), salary reduction agreement, change-of-control agreement, golden parachute, employment agreement, or consulting agreement or any other benefit program or contract (collectively, "EMPLOYEE BENEFIT PLANS"). True, correct and complete copies of all Employee Benefit Plans previously have been furnished to Buyer along with all applicable summary plan descriptions, material employee communications, annual reports for the two most recent years, the most recent annual and periodic accounting of plan assets, the most recent determination letter of the Internal Revenue Service and the most recent actuarial valuation relating thereto. Each Employee Benefit Plan (which, for purposes of this sentence and notwithstanding the reference to January 1, 1996 above, includes any such plan maintained, sponsored, adopted, contributed to or obligated to by the Company or any Plan Affiliate within the last six years) has been maintained in all material respects in compliance with governing documents and agreements and with applicable laws, regulations, rules, ordinances, orders and other requirement of law. The Company and the Plan Affiliates have fulfilled all applicable obligations under the minimum funding standards of ERISA and the Code (as defined in Section 10.10 below), have not incurred and will not incur any liability under Title IV of ERISA to the Pension Plan”Benefit Guaranty Corporation ("PBGC") and have not incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA). None of the Employee Benefits Plans is a "Multi-employer Plan" within the meaning of Section 3(37) of ERISA or is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA and neither the Company nor any Plan Affiliate contributes to or has an obligation to contribute to, or has within the last six years contributed to or had an obligation to contribute to, a Multi-employer Plan. Each Employee Benefit Plan which is intended to be a tax qualified plan under Section 401(a) of the Code has been since its inception so qualified and is the subject of a favorable determination or opinion letter from the Internal Revenue Service with respect to such qualified status. No termination, cancellation, discontinuance or other fees are or would become payable as a result of the termination or discontinuance of any group annuity contract maintained under any Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation Code. All voluntary employee benefit associations have been submitted to and Benefit Plan is approved as exempt from federal income tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c501(c)(9) of the Code is or was subject by the Internal Revenue Service. With respect to Title IV each Employee Benefit Plan, there has occurred no transaction prohibited by Section 406 of ERISA or is or was which constitutes a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien "prohibited transaction" under Section 412(n4975(c) of the Code and with respect to which a prohibited transaction exemption is not currently in effect. The consummation of the transactions contemplated by this Agreement and the Merger Documents will not (either alone or pursuant to ERISA.
(v) Neither Cardinal nor any in conjunction with another event, such as termination of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death employment or other benefits under services) entitle any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death employee or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do person to receive severance or other compensation which would not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, otherwise be payable absent the consummation of the transactions contemplated by this Agreement would not, directly and the Merger Documents or indirectly (including, without limitation, as a result cause the acceleration of the time of payment or vesting of any termination of employment prior award or entitlement under any Employee Benefit Plan. Each Employee Benefit Plan may be unilaterally terminated and/or amended by the Company at any time without damage or penalty. All contributions, insurance premiums, benefits and other payments to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and each Employee Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to all through the Closing have or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably will be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct made prior to the Effective TimeClosing or have been accrued on the Financial Statements or will be accrued on the Closing Date Financials, in each case in accordance with GAAP consistently applied. As a resultWith respect to each Employee Benefit Plan, directly (i) the Company has no knowledge of any application, proceeding or indirectlyother matter that is pending before the Internal Revenue Service, the Department of Labor or any other governmental agency; (ii) no action, suit, proceeding or claim (other than routine claims for benefits) is pending or, to the Company's knowledge, threatened; and (iii) to the knowledge of the transactions contemplated by this Agreement Company, no facts exist which are likely to give rise to an action, suit, proceeding or claim which, if asserted, could result in a material liability or expense to the Company or the plan assets. Neither the Company nor any Plan Affiliate maintains, contributes to, or is obligated under any plan, contract, policy or arrangement providing health or death benefits (including, without limitation, as a result of any whether or not insured) to current or former employees or other personnel beyond the termination of their employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codeservices.
Appears in 2 contracts
Samples: Merger Agreement (TMP Worldwide Inc), Merger Agreement (TMP Worldwide Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i2.13(a) of Cardinal’s the Company Disclosure Schedule, Cardinal has set forth Schedule contains a true and complete and accurate list of each of the material Company Plans. The Company has described or provided or made available to Parent current, accurate and complete copies, or in some cases copies of the prior year plans which are substantially similar to the plans currently in place, of all existing employee benefit plans, programs and arrangements (including any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and any other bonus, stock option, stock purchase, incentive, deferred compensation, pension, supplemental retirement, profit-sharinghealth, thriftlife or disability insurance, savingsdependent care, severance and other similar fringe or employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insuranceprograms or arrangements sponsored or maintained by the Acquired Entities or to which the Acquired Entities are making contributions or with respect to which the Acquired Entities have or would reasonably be expected to have any liability (contingent or otherwise) in each case, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee if material to the Acquired Entities (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Company Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(iib) Each Compensation and Benefit Company Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) stating that such Company Plan is so qualified or the Compensation and Benefit Plan uses is a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving whose sponsor a favorable determination letteropinion letter has been issued by the Internal Revenue Service. There is no Each Company Plan has been operated in material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation compliance with its terms and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged complies in a transaction, or omitted to take any action, form and in operation in all material respects with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofall applicable Legal Requirements.
(iiic) No Compensation and Benefit Plans currently maintained, or maintained within None of the last six years, by Cardinal or any of its Subsidiaries or Acquired Entities nor any entity (an “ERISA Affiliate”) that which is considered one employer with Cardinal the Company under Section 4001(a)(14) 4001 of ERISA or Section 414(b) or (c) 414 of the Code is has ever sponsored, contributed to, or was had or has any material liability respecting, an employee benefit plan subject to Title IV of ERISA, Section 302 of ERISA or is or was a multiemployer plan under Subtitle E Section 412 of Title IV of ERISAthe Code. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Except as set forth in Section 401(a)(292.13(c) of the CodeCompany Disclosure Schedule, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit no Company Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree provides health or life insurance benefits (whether or retiree death not insured), with respect to current or former employees or directors of any of the Acquired Entities beyond their retirement or other benefits on a permanent basistermination of service, other than health continuation coverage as required by Section 4980B, the full cost of which is borne by the current or former employee or director.
(vid) Cardinal Each Company Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and its Subsidiaries do not maintain any Compensation maintained in all material respects in operational and Benefit Plans covering foreign Employeesdocumentary compliance with Section 409A of the Code and all IRS guidance promulgated thereunder.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiie) Except as set forth on disclosed in Section 6.03(m)(viii2.13(e) of Cardinal’s the Company Disclosure Schedule, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement would Merger will not, directly either alone or indirectly in combination with any other event, (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (Ai) entitle any Employeecurrent or former employee, Consultant officer, director or Director consultant of any Acquired Entity to any payment (including severance pay or similar compensation) pay, unemployment compensation or any increase in compensationother similar termination payment, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (Cii) result in accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any material increase in benefits payable under benefit due any Compensation and Benefit Plansuch employee, officer, director or consultant.
(ixf) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result None of the limitations under Section 162(mAcquired Entities is a party to any agreement, contract, arrangement or plan (including any Company Plan) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a that has resulted or would result, directly separately or indirectlyin the aggregate, of in connection with the transactions contemplated by this Agreement (includingeither alone or in combination with any other events), without limitation, as a result in the payment of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute paymentpayments” to an individual who is a “disqualified individual” (as such terms are defined in within the meaning of Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xig) As Each of the Effective Date, there are no supplemental Acquired Entities is in compliance in all material respects with all applicable Legal Requirements and contracts to which it is a party relating to the employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Scheduleemployees.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Zayo Group LLC), Merger Agreement (Abovenet Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal Parent has set forth made available to the Company a true and complete and accurate list of all existing (A) each material bonus, incentivepension, profit sharing, deferred compensation, pensionincentive compensation, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severanceequity compensation, welfare and fringe benefit plansretirement, survivor vacation, employment, disability, death benefit, hospitalization, medical insurance, life insurance, split dollar welfare, severance or other life insurance employee benefit plan, agreement, arrangement or understanding maintained by Parent or any Parent Subsidiary or to which Parent or any Parent Subsidiary contributes or is obligated to contribute or with respect to which Parent or any Parent Subsidiary has any material liability, and (B) each change of control agreement and each material employment or severance agreements and all similar practices, policies and arrangements agreement providing benefits (other than those benefits required by applicable Law or customarily provided in which such jurisdiction) to any current or former employee employee, officer or director of Parent or any Parent Subsidiary, to which Parent or any Parent Subsidiary is a party or by which Parent or any Parent Subsidiary is bound (collectively, the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Parent Benefit Plans”). Except as required by With respect to each Parent Benefit Plan, no event has occurred and there exists no condition or set of circumstances in connection with which Parent or any Parent Subsidiary could be subject to any liability that, individually or in the terms of this Agreement aggregate, would reasonably be expected to have or as Previously Disclosed result in a material adverse effect on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Parent. Neither Parent nor any of its Subsidiaries Parent Subsidiary has any commitment liability (including contingent liability) with respect to create any additional Compensation and plan, agreement, arrangement or understanding of the type described in this paragraph other than the Parent Benefit Plan Plans, other than liability which, individually or in the aggregate, would not reasonably be expected to modify have or change any existing Compensation and Benefit Planresult in a material adverse effect on Parent.
(ii) Each Compensation and Parent Benefit Plan has been operated and administered in all material respects in accordance with its terms, all applicable Laws, including ERISA and the Code, and the terms of all applicable collective bargaining agreements, except for any failures so to administer any Parent Benefit Plan that, individually or in the aggregate, would not reasonably be expected to have or result in a material adverse effect on Parent. Parent and all Parent Benefit Plans are in compliance with the applicable law, including, but not limited to, provisions of ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, Code and all 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 Laws and the terms of all applicable collective bargaining agreements, except for any failures to be in such compliance that, individually or in the aggregate, would not reasonably be expected to have been timely madeor result in a material adverse effect on Parent. Each Compensation and Parent Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a), 401(k) or 4975(e)(7) of the Code has received a favorable determination and/or opinion letter from the IRS as to its qualified status and, to the knowledge of Parent, there exist no facts or circumstances that have caused or could cause a failure to be so qualified under Section 401(a), 401(k) or 4975(e)(7) of the Code. No fact or event has applied occurred which is reasonably likely to affect adversely the qualified status of any such Parent Benefit Plan or the exempt status of any such trust, except for any occurrence that, individually or in the aggregate, would not reasonably be expected to have or result in a favorable determination letter material adverse effect on Parent. All contributions to, and payments from, the Parent Benefit Plans that are required to have been made in compliance accordance with such Parent Benefit Plans, ERISA or the Code (including have been timely made other than any failures that, individually or in the aggregate, would not reasonably be expected to have or result in a determination material adverse effect on Parent. All trusts providing funding for Parent Benefit Plans that are intended to comply with Section 501(c)(9) of the related trust under such Compensation and Benefit Plan is Code are exempt from tax under federal income taxation and, together with any other welfare benefit funds (as defined in Section 501(a419(e)(1) of the Code) from maintained in connection with any of the Internal Revenue Service (“IRS”) or the Compensation Parent Benefit Plans, have been operated and administered in compliance with all applicable requirements such that neither Parent, any Parent Subsidiary, any Parent Benefit Plan uses nor such trust or fund is subject to any taxes, penalties or other liabilities imposed as a prototype or volume submitter plan that is consequence of failure to comply with such requirements. No welfare benefit fund (as defined in Section 419(e)(1) of the subject Code) maintained in connection with any of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Parent Benefit Plans other than routine claims has provided any “disqualified benefit” (as defined in Section 4976(b)(1) of the Code) for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal which Parent or any of its Subsidiaries to a material Parent Subsidiary has or had any liability for the excise tax or penalty imposed by either Section 4975 4976 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofwhich has not been paid in full.
(iii) No Compensation and Benefit Plans currently maintainedOther than as would not reasonably be expected to have or result in a material adverse effect on Parent, neither Parent nor any trade or maintained business, whether or not incorporated, which, together with Parent, would be deemed to be a “single employer” within the last six years, by Cardinal or any meaning of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(144001(b) of ERISA or Section 414(b) or (c414(c) of the Code (a “Parent ERISA Affiliate”) has incurred any liability under Title IV of ERISA (other than for premiums pursuant to Section 4007 of ERISA which have been timely paid) or Section 4971 of the Code, and no condition exists that presents a risk to Parent or any Parent ERISA Affiliate of incurring any such liability or failure. Each Parent Benefit Plan (other than a Multiemployer Plan) to which Section 412 of the Code or Section 302 of ERISA applies has satisfied the requirements of Sections 412, 430 and 436 of the Code and Sections 302 and 303 of ERISA, and no such Parent Benefit Plan is in “at-risk status” within the meaning of Section 430(i)(4) of the Code or was Section 303(i)(4) of ERISA or subject to the limitations of Section 436 of the Code. No Parent Benefit Plan has or has incurred an accumulated funding deficiency within the meaning of Section 302 of ERISA or Section 412 of the Code, nor has any waiver of the minimum funding standards of Section 302 of ERISA and Section 412 of the Code been requested of or granted by the Internal Revenue Service with respect to any Parent Benefit Plan, nor has any Lien in favor of any Parent Benefit Plan arisen under Sections 412(n) or 430(k) of the Code or Sections 302(f) or 303(k) of ERISA. Neither Parent nor any Parent ERISA Affiliate has been required to provide security to any defined benefit pension plan pursuant to Section 401(a)(29) of the Code or Sections 306 or 307 of ERISA. With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Sections 412 or 4971 of the Code that is not a Multiemployer Plan, the fair market value of the assets of such Parent Benefit Plan equals or was a multiemployer plan exceeds the actuarial present value of all accrued benefits under Subtitle E of Title IV of ERISA. To such Parent Benefit Plan (whether or not vested), based upon the actuarial assumptions used to prepare the most recent actuarial report for such Parent Benefit Plan and, to the knowledge of CardinalParent, there is no pending investigation event has occurred which would be reasonably expected to change any such funded status. There has been no “reportable event” within the meaning of Section 4043 of ERISA and the regulations and interpretations thereunder which has not been fully and accurately reported in a timely fashion, as required, or enforcement action by which, whether or not reported, would constitute grounds for the PBGC, the DOL or IRS or any other governmental agency PBGC to institute termination proceedings with respect to any Compensation and Parent Benefit Plan. The PBGC has not instituted proceedings to terminate any Parent Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or Except as would not reasonably be expected to be have or result in a material adverse effect on Parent, no Parent Benefit Plan provides medical or life insurance benefits (whether or not insured) with respect to current or former employees or officers or directors after retirement or other termination of service, other than any such coverage required by Law, and Parent and the Parent Subsidiaries have reserved all rights necessary to provide, security to any Pension Plan pursuant to Section 401(a)(29) amend or terminate each of the Code, and (y) has taken Parent Benefit Plans without the consent of any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAother person.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B The consummation of the Codetransactions contemplated by this Agreement will not, and each such Compensation and Benefit Plan may be amended either alone or terminated without incurring liability thereunderin combination with another event, and there has been no communication (A) entitle any current or former employee, officer or director of Parent or the Parent Subsidiaries to Employees by Cardinal severance pay, unemployment compensation or any other payment, except as expressly provided in this Agreement, or (B) accelerate the time of its Subsidiaries that would reasonably be expected to promise payment or guarantee vesting, or increase the amount of compensation due any such Employees retiree health employee, officer or life insurance or retiree death or other benefits on a permanent basisdirector.
(vi) Cardinal and Neither Parent nor any Parent Subsidiary is a party to any agreement, contract or arrangement (including this Agreement) that could result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code. No Parent Benefit Plan provides for the reimbursement of excise taxes under Section 4999 of the Code or any income taxes under the Code. The deductions taken by Parent or any Parent Subsidiary related to compensation paid to its Subsidiaries do not maintain named executive officers under any Compensation and Parent Benefit Plans covering foreign EmployeesPlan have been made in material compliance with or pursuant to exceptions from the limitations set forth in Section 162(m) of the Code.
(vii) With respect to each Compensation and Parent Benefit Plan, if applicable, Cardinal Parent has provided delivered or made available to United, the Company a true and complete copies of existingcopy of: (A) Compensation and each writing constituting a part of such Parent Benefit Plan, including all Parent Benefit Plan documents and amendments theretotrust agreements; (B) trust instruments the three most recent Annual Reports (Form 5500 Series) and insurance contractsaccompanying schedules, if any; (C) two the most recent Forms 5500 filed with the IRSannual financial report, if any; (D) the most recent actuarial report report, if any; and financial statement; (E) the most recent summary plan description; (F) forms filed with determination letter from the PBGC (other than for minimum payments); (G) most recent determination Internal Revenue Service, if any. Except as specifically provided in the foregoing documents delivered or opinion letter issued by made available to the IRS; (H) Company, there are no material amendments to any Form 5310 Parent Benefit Plan that have been adopted or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)approved nor has Parent or any Parent Subsidiary undertaken to make any such material amendments or to adopt or approve any new Parent Benefit Plan.
(viii) Except as set forth on Section 6.03(m)(viii) No Parent Benefit Plan is a Multiemployer Plan or a Multiple Employer Plan. None of Cardinal’s Disclosure ScheduleParent, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal Parent Subsidiaries nor any of its Subsidiaries maintains their respective Parent ERISA Affiliates has, at any compensation planstime during the last six years, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior contributed to or following been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan. None of Parent, the Effective Time)Parent Subsidiaries nor any of their respective Parent ERISA Affiliates has incurred any material withdrawal liability under a Multiemployer Plan that has not been satisfied in full, neither United nor Cardinaldoes Parent have any material contingent liability with respect to any withdrawal from any Multiemployer Plan. None of Parent, the Parent Subsidiaries nor any of their respective Parent ERISA Affiliates would incur any material withdrawal liability (within the meaning of Part 1 of Subtitle E of Title I of ERISA) if Parent, the Parent Subsidiaries or any of their respective Parent ERISA Affiliates withdrew (within the meaning of Part 1 of Subtitle E of Title I of ERISA) on or prior to the Closing Date from each Multiemployer Plan to which Parent, the Parent Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its their respective Parent ERISA Affiliates has an obligation to contribute on the date of this Agreement. No Multiemployer Plan to which Parent, the Parent Subsidiaries that would be characterized as or any of their respective Parent ERISA Affiliates contributes or otherwise has any liability (contingent or otherwise) has incurred an accumulated funding deficiency within the meaning of Section 431(a) of the Code or Section 304(a) of ERISA, is insolvent, is in reorganization (within the meaning of Section 4241 of ERISA), is reasonably likely to commence reorganization, is in “excess parachute paymentendangered” to an individual who is a or “disqualified individualcritical” status (as such terms are defined in Section 280G 432 of the Code) or is reasonably likely to be in endangered or critical status.
(ix) There are no pending or threatened claims (other than claims for benefits in the ordinary course), without regard to whether such payment is reasonable compensation for personal services performed lawsuits or arbitrations that have been asserted or instituted, or to Parent’s knowledge, no set of circumstances exists that may reasonably give rise to a claim or lawsuit, against the Parent Benefit Plans, any fiduciaries thereof with respect to their duties to the Parent Benefit Plans or the assets of any of the trusts under any of the Parent Benefit Plans that could reasonably be performed expected to result in any material liability of Parent or any Parent Subsidiaries to the futurePBGC, the United States Department of Treasury, the United States Department of Labor, any Multiemployer Plan, any Parent Benefit Plan, any participant in a Parent Benefit Plan, any employee benefit plan with respect to which Parent or any Parent Subsidiary has any contingent liability, or any participant in an employee benefit plan with respect to which Parent or any Parent Subsidiary has any contingent liability.
(x) There have been no prohibited transactions or breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Parent Benefit Plans that could result in any liability or excise tax under ERISA or the Code being imposed on Parent or any of the Parent Subsidiaries, except as would not reasonably be expected to have or result in a material adverse effect on Parent.
(xi) As All contributions, transfers and payments for the benefit of the Effective DateU.S. employees in respect of any Parent Benefit Plan, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor other than transfers incident to an incentive stock option plan within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A Section 422 of the Code that Code, have been or are subject to claims of creditorsfully deductible under the Code, and except as set forth would not reasonably be expected to have or result in a material adverse effect on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure ScheduleParent.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor With respect to any of its Subsidiaries has made any agreement, taken any actioninsurance policy that has, or omitted does, provide funding for benefits under any Parent Benefit Plan, to take the knowledge of Parent, no insurance company issuing any actionsuch policy is in receivership, conservatorship, liquidation or similar proceeding and, to the knowledge of Parent, no such proceedings with respect to or as part any insurer are imminent.
(xiii) For purposes of any Compensation and Benefit Plan that is an operational failure under this Section 409A of 3.2(i) only, the Code or that would reasonably term “employee” will be expected considered to subject Cardinal include individuals rendering personal services to Parent or any of its Subsidiaries to any obligation to report any amount or withhold any amount Parent Subsidiary as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codeindependent contractors.
Appears in 2 contracts
Samples: Merger Agreement (Schulman a Inc), Merger Agreement (Ico Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal Roma Financial has set forth Previously Disclosed a complete and accurate list of all existing bonus, incentive, deferred compensation, supplemental executive retirement plans, 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 (including paid time off policies and other material benefit policies and procedures), fringe benefit plans, survivor life insuranceemployment, split dollar or other life insurance benefit planconsulting, employment or severance settlement and change in control agreements and all similar other material benefit practices, policies and arrangements maintained by Roma MHC, Roma Financial or any Roma Subsidiary in which any current employee or former employee (the “Employees”)employee, current consultant or former consultant (the “Consultants”) or current director or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employeesemployee, Consultants consultant or Directors are director is a party or is otherwise entitled to receive benefits, including such plans of any entities acquired by any Roma Parties or any Roma Subsidiary (the “Roma Financial Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure ScheduleNeither Roma MHC, neither Cardinal Roma Financial nor any of its Subsidiaries Roma Subsidiary has any written or oral commitment to create any additional Roma Financial Compensation and Benefit Plan or to modify materially modify, change or change renew any existing Roma Financial Compensation and Benefit PlanPlan (any modification or change that increases the cost of such plans would be deemed material), except as required to maintain the qualified status thereof, Roma Financial has made available to Investors Bancorp true and correct copies of the Roma Financial Compensation and Benefit Plans.
(iib) Each To the Knowledge of Roma Financial, each Roma Financial Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the CodeIRC, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or Part G of Subtitle I of ERISA and Section 4980B of the IRC (collectively, “COBRA”), the Health Insurance Portability and Accountability Act (“HIPAA”) and any regulations or rules promulgated thereunder, and all material filings, disclosures and notices required by ERISA, the CodeIRC, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act Act, COBRA and HIPAA and any other applicable law have been timely mademade or any interest, fines, penalties or other impositions for late filings have been paid in full. Each Roma Financial Compensation and Benefit Plan that which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code IRC has received a favorable determination letter from the IRS or has applied for is entitled to rely on a favorable determination letter in compliance with issued to the Code (including sponsor of a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) master or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterplan, and Cardinal Roma Financial is not aware of any circumstances that could adversely affect such qualification or that which are reasonably likely to result in the revocation of any existing favorable determination letter or in not receiving a such favorable determination letter. There is no material pending or, to the knowledge Knowledge of CardinalRoma Financial, threatened legal action, suit or claim relating to any of the Roma Financial Compensation and Benefit Plans (other than routine claims for benefits). Neither Cardinal Roma Financial nor any of its Subsidiaries Roma Subsidiary has engaged in a transaction, or omitted to take any action, with respect to any Roma Financial Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Roma Financial or any of its Subsidiaries Roma Subsidiary to a material unpaid tax or penalty imposed by either Section 4975 Chapter 43 of the Code IRC or Section Sections 409 or 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iiic) No liability under Title IV of ERISA has been incurred by Roma Financial or any Roma Subsidiary with respect to any Roma Financial Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that Plan which is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA (“Roma Financial Defined Benefit Plan”) currently or formerly maintained by Roma Financial or any entity which is considered one employer with Roma Financial under Section 4001(b)(1) of ERISA or was Section 414 of the IRC (an “Roma Financial ERISA Affiliate”) since the effective date of ERISA that has not been satisfied in full, and no condition exists that presents a multiemployer plan material risk to Roma Financial or any Roma Financial ERISA Affiliate of incurring a liability under Subtitle E of Title IV such Title. Except as Previously Disclosed, no Roma Financial Defined Benefit Plan had an “accumulated funding deficiency” (as defined in Section 302 of ERISA. To ), whether or not waived, as of the knowledge last day of Cardinalthe end of the most recent plan year ending prior to the date hereof; the fair market value of the assets of each Roma Financial Defined Benefit Plan exceeds the present value of the “benefit liabilities” (as defined in Section 4001(a)(16) of ERISA) under such Roma Financial Defined Benefit Plan as of the end of the most recent plan year with respect to the respective Roma Financial 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 Roma Financial Defined Benefit Plan as of the date hereof; there is no not currently pending investigation or enforcement action by with the Pension Benefits Guarantee Corporation (“PBGC, the DOL or IRS or ”) any other governmental agency filing with respect to any reportable event under Section 4043 of ERISA nor has any reportable event occurred as to which a filing is required and has not been made (other than as might be required with respect to this Agreement and the transactions contemplated thereby). Neither Roma Financial nor any Roma Financial ERISA Affiliate has contributed to any “multiemployer plan,” as defined in Section 3(37) of ERISA. Neither Roma Financial, nor any Roma Financial ERISA Affiliate, nor any Roma Financial Compensation and Benefit Plan, including any Roma Financial Defined Benefit Plan, nor any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection with which Roma Financial, any Roma Financial ERISA Affiliate, and any Roma Financial Compensation and Benefit Plan, including any Roma Financial Defined Benefit Plan or any such trust or any trustee or administrator thereof, could reasonably be expected to be subject to either a civil liability or penalty pursuant to Section 409, 502(i) or 502(l) of ERISA or a tax imposed pursuant to Chapter 43 of the IRC.
(ivd) All material contributions required to be made under the terms of any Roma Financial Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected made, and all anticipated contributions and funding obligations are accrued on CardinalRoma Financial’s consolidated financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected statements to be the extent required to provide, security to any Pension Plan pursuant to by GAAP and Section 401(a)(29) 412 of the Code, IRC. Roma Financial and (y) each Roma Subsidiary has taken any action, or omitted expensed and accrued as a liability the present value of future benefits under each applicable Roma Financial Compensation and Benefit Plan for financial reporting purposes to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAextent required by GAAP.
(ve) Neither Cardinal Except as Previously Disclosed, neither Roma Financial nor any of its Subsidiaries Roma Subsidiary has any obligations to provide retiree health and health, life insurance, retiree long-term care insurance or disability insurance, or any retiree death or other benefits under any Roma Financial Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there COBRA. There has been no communication to Employees employees by Cardinal Roma Financial or any of its Subsidiaries Roma Subsidiary that would reasonably be expected to promise or guarantee such Employees employees retiree health health, life insurance, or life insurance disability insurance, or any retiree death or other benefits on a permanent basisbenefits.
(vif) Cardinal and its Subsidiaries do not maintain Neither Roma Financial nor any Roma Subsidiary maintains any Roma Financial Compensation and Benefit Plans covering foreign Employeesemployees who are not United States residents.
(viig) With respect to each Roma Financial Compensation and Benefit Plan, if applicable, Cardinal Roma Financial has provided or made available to United, true and complete Investors Bancorp copies of existingthe: (A) Compensation plan documents, including any underlying distribution election forms and Benefit Plan documents and amendments thereto; (B) benefit schedules, trust instruments and insurance contracts; (B) three most recent IRS Forms 5500; (C) two three most recent Forms 5500 filed with actuarial reports and financial statements, including the IRStotal accrued and vested liabilities, all contributions made by Roma Financial and any Roma Subsidiary and assumptions on which the calculations are based; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (GE) most recent determination or opinion letter issued by the IRS; (HF) any Form 5310 or Form 5330 filed with the IRSIRS within the last three years; and (IG) most recent nondiscrimination tests performed under ERISA and the Code IRC (including 401(k) and 401(m) tests); and (H) all material communications with any governmental authority (including the U.S. Department of Labor, IRS, PBGC, OCC, FRB and SEC) with respect to any Roma Financial Compensation and Benefit Plan.
(viiih) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure SchedulePreviously Disclosed, the consummation of the transactions contemplated by this Agreement would Mergers will not, directly or indirectly (including, without limitation, as a result of any termination of employment or service at any time prior to or following the Effective Time) reasonably be expected to (A) entitle any Employeeemployee, Consultant consultant or Director director to any payment or benefit (including severance pay pay, change in control benefit, or similar compensation) or any increase in compensation, (B) entitle any employee or independent contractor to terminate any plan, agreement or arrangement without cause and continue to accrue future benefits thereunder, or result in the vesting or acceleration of any benefits under any Roma Financial Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Roma Financial Compensation and Benefit Plan.
(ixi) Neither Cardinal Roma Financial nor any of its Subsidiaries Roma Subsidiary maintains any compensation plans, programs or arrangements the payments under which would not any payment is reasonably be expected likely to be deductible become non-deductible, in whole or in part, for tax reporting purposes as a result of the limitations under Section 162(m) of the Code IRC and the regulations issued thereunder.
(xj) Except as set forth on Previously Disclosed, to the Knowledge of Roma Financial, all “non-qualified” deferred compensation plans, programs or arrangements (within the meaning of Section 6.03(m)(x409A of the IRC) of Cardinal’s Disclosure ScheduleRoma Financial and each Roma Subsidiary have (i) between January 1, 2005 and December 31, 2008, been operated in all material respects in good faith compliance with Section 409A of the IRC and applicable IRS Notices, and (ii) since January 1, 2009 (or such later date as permitted under applicable guidance issued by the IRS), have been in compliance with Section 409A of the IRC and IRS regulations and guidance thereunder. All stock options and stock appreciation rights granted by Roma Financial or any Roma Subsidiary to any current or former employee or director have been granted with a per share exercise price or reference price at least equal to the fair market value of the underlying stock on the date the option or stock appreciation right was granted, within the meaning of Section 409A of the IRC and associated guidance.
(k) Except as Previously Disclosed, there are no stock options, stock appreciation or similar rights, earned dividends or dividend equivalents, or shares of restricted stock, outstanding under any of the Roma Financial Compensation and Benefit Plans or otherwise as of the date hereof and none will be granted, awarded, or credited after the date hereof.
(l) Roma Financial has Previously Disclosed a list setting forth, as of the payroll date immediately preceding the date of this Agreement, a resultlist of the full names of all officers, directly and employees of Roma Financial and each Roma Subsidiary whose annual rate of salary is $75,000 or indirectlygreater, their title and rate of salary, and their date of hire.
(m) Any amount that is reasonably likely to be received (whether in cash or property or the vesting of property) as a result of any of the transactions contemplated by this Agreement by any employee, officer, director or independent contractor of the Roma Parties who is a “Disqualified Individual” (including, without limitation, as a result of such term is defined in Treasury Regulation Section 1.280G-1) under any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries Roma Financial Compensation and Benefit Plan currently in effect will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would not be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are term is defined in Section 280G 280G(b)(1) of the CodeIRC), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Investors Bancorp Inc), Merger Agreement (Roma Financial Corp)
Employee Benefit Plans. (ia) On The only employee pension benefit plans (as defined in Section 6.03(m)(i3(2) of Cardinal’s Disclosure ScheduleERISA), Cardinal has set forth a complete and accurate list welfare benefit plans (as defined in Section 3(1) of all existing bonusERISA), incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stockstock ownership, stock option, severancedeferred compensation, welfare incentive or other compensation plan or arrangement, and other material employee fringe benefit plansplans presently maintained by, survivor life insurance, split dollar or other life insurance contributed to by Premier or Premier New Orleans for the benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which of any current or former employee of Premier or Premier New Orleans, other than a multiemployer plan as defined in Section 3(37) of the ERISA, are those listed on Schedule 4.15 (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and "Benefit Plans”"). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(iib) Each Compensation Premier, Premier New Orleans and each of the Benefit Plan has Plans are in compliance with the applicable provisions of ERISA, and those provisions of the Code applicable to the Benefit Plans.
(c) All contributions to, and payments from, the Benefit Plans which may have been operated and administered in all material respects required to be made in accordance with its terms and with applicable lawthe Benefit Plans and, includingwhen applicable, but not limited to, ERISA, Section 302 of ERISA or Section 412 of the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and .
(d) To the Knowledge of either Premier or Premier New Orleans, there are (i) no pending investigations by any Governmental Authority involving the Benefit Plans, (ii) no termination proceedings involving the Benefit Plans, (iii) no threatened or pending claims (except for claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings against any Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended or asserting any rights or EXECUTION COPY claims to be qualified benefits under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and any Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterwhich could give rise to any material liability, and Cardinal is not aware of (iv) no facts which could give rise to any circumstances that could adversely affect such qualification or that are likely to result material liability in the revocation event of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending orsuch investigation, to the knowledge of Cardinal, threatened legal actionclaim, suit or claim relating to proceeding.
(e) Neither the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal Plans, Premier, Premier New Orleans, nor any employee of its Subsidiaries Premier or Premier New Orleans nor any trusts created thereunder or any trustee, administrator or other fiduciary thereof, has engaged in a "prohibited transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either " (as such term is defined in Section 4975 of the Code or Section 502 406 of ERISA, assuming for purposes of ) which could subject Premier or Premier New Orleans to the tax or penalty on prohibited transactions imposed by such Section 4975 or the sanctions imposed under Title I of ERISA. Neither the Code that the taxable period of Benefit Plans nor any such transaction expired trust has been terminated nor have there been any "reportable events" (as defined in Section 4043 of ERISA and the date hereofregulations thereunder) with respect to either thereof.
(iiif) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was Plan subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E has incurred any material liability to the Pension Benefit Guaranty Corporation other than for the payment of Title IV premiums, all of ERISAwhich have been paid when due. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and No Benefit Plan has applied for or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any received a waiver of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to the minimum funding standards imposed by Section 401(a)(29) 412 of the Code, . Each of Premier and (y) Premier New Orleans has taken any action, or omitted furnished to take any action, that has resulted, or would reasonably be expected to result, in Buyer the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior respect to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and each Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation defined benefit pension plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under by Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time3(35), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Satellink Communications Inc), Merger Agreement (Satellink Communications Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i4.16(a) of Cardinal’s the Company Disclosure ScheduleSchedule contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, Cardinal has set forth a complete each material employment, severance or similar contract, plan, arrangement or policy and accurate list of all existing bonus, incentive, deferred each other material plan or arrangement (written or oral) providing for compensation, pension, retirementbonuses, profit-sharing, thriftstock option or other stock related rights or other forms of incentive or deferred compensation, savingsvacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee stock ownershipassistance program, stock bonusdisability or sick leave benefits, stock purchaseworkers’ compensation, restricted stocksupplemental unemployment benefits, stock optionseverance benefits and post-employment or retirement benefits (including compensation, severancepension, welfare and fringe benefit planshealth, survivor life insurance, split dollar medical or other life insurance benefit planbenefits) which is maintained, employment administered or severance agreements contributed to by the Company or any Affiliate and all similar practices, policies and arrangements in which covers any current employee or former employee (of the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Company or any of its Subsidiaries participates Subsidiaries, or with respect to which any such Employees, Consultants the Company or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto have been made available to create Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) and tax return (Form 990) prepared in connection with any additional Compensation such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” Employee Plans that primarily cover any employee or former employee outside of the United States are referred to herein collectively as “International Plans” and Benefit Plan or to modify or change any existing Compensation and Benefit Planare specifically identified in Section 4.16(a) of the Company Disclosure Schedule by an asterisk.
(iib) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable lawNeither the Company nor any ERISA Affiliate nor any predecessor thereof sponsors, including, but not limited maintains or contributes to, or has in the six-year period preceding the date hereof sponsored, maintained or contributed to, any employee plan subject to Title IV of ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act. The Company does not maintain or contribute to, or have liability in connection with, any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Employee Plan that is an a “employee pension benefit defined-benefit” type or similar actuarial arrangement that primarily covers employees or former employees outside of the United States, other than any such arrangements that are mandated by local law.
(c) Neither the Company nor any ERISA Affiliate nor any predecessor thereof contributes to, or has in the six-year period preceding the date hereof contributed to, any multiemployer plan” within the meaning of , as defined in Section 3(23(37) of ERISA (a “Pension Multiemployer Plan”).
(d) Except for matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Employee Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan. Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter letter, or has applied pending or has time remaining in which to file, an application for a favorable such determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterService, and Cardinal the Company is not aware of any circumstances reason why any such determination letter should be revoked or not be issued. The Company has made available to Parent copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. Except for matters that could adversely affect such qualification would not reasonably be expected to have, individually or that are likely to result in the revocation of any existing favorable determination letter or in not receiving aggregate, a favorable determination letter. There is Company Material Adverse Effect, no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, events have occurred with respect to any Compensation and Benefit Employee Plan that would reasonably be expected to subject Cardinal could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code.
(e) Except as set forth in Section 4.16(e) of the Company Disclosure Schedule, the consummation by the Company of the transactions contemplated by this Agreement will not (either alone or together with any other event) entitle any employee or independent contractor of the Company or any of its Subsidiaries to any severance, bonus, retirement, job security or similar benefit or enhance such benefit or accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other material tax obligation pursuant to, any Employee Plan. There is no contract, plan or penalty imposed by either Section 4975 arrangement (written or otherwise) covering any employee or former employee of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal Company or any of its Subsidiaries that, individually or collectively, would entitle any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA employee or Section 414(b) former employee to any severance or (c) other payment solely as a result of the Code is transactions contemplated hereby, or was subject could give rise to Title IV the payment of ERISA or is or was a multiemployer plan under Subtitle E any amount that would not be deductible pursuant to the terms of Title IV Section 280G of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit PlanCode.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(vf) Neither Cardinal the Company nor any of its Subsidiaries has any obligations liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except (i) as required to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits avoid excise tax under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the CodeCode or (ii) for benefits provided during any severance period pursuant to a written employment or separation plan or agreement and that in the aggregate do not constitute a material liability of the Company.
(g) Except as set forth in Section 4.16(g) of the Company Disclosure Schedule or as required or deemed advisable by applicable Law, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees amendment to, written interpretation or announcement (whether or not written) by Cardinal the Company or any of its Subsidiaries Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 31, 2006 by an amount that would reasonably be expected to promise have, individually or guarantee such Employees retiree health or life insurance or retiree death or other benefits on in the aggregate, a permanent basisCompany Material Adverse Effect.
(vih) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies For purposes of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Ventana Medical Systems Inc), Merger Agreement (Roche Holding LTD)
Employee Benefit Plans. Neither VCB nor the Bank has (i) On any liability, (ii) any funding deficiency, or (iii) any funding waivers outstanding or applied for to the Pension Benefit Guaranty Corporation or to the IRS with respect to any pension plan qualified under Section 6.03(m)(i401 of the Internal Revenue Code. The value of accrued vested benefits with respect to any such pension plan do not exceed the value of the total assets of such plan. All "Employee Benefit Plans," as defined in Section 3(3) of Cardinal’s Disclosure ScheduleERISA that cover one or more employees employed by either VCB or the Bank ("Employee Benefit Plans") comply in all material respects with ERISA and, Cardinal where applicable, for tax-qualified or tax-favored treatment, with the Internal Revenue Code. Neither the Employee Benefit Plans nor any trustee or administrator thereof has set forth engaged in a "prohibited transaction" within Section 406 of ERISA or, where applicable, Section 4975 of the Internal Revenue Code for which no exemption is applicable, nor have there been any "reportable events" within Section 4043 of ERISA which are required to be reported but were not timely reported. There is not and has not been any violation of the Consolidated Omnibus Budget Reconciliation Act of 1986. Neither VCB nor the Bank has contributed to, is not obligated to contribute to, and has not been a sponsor of a multi-employer plan. VCB and the Bank have made available to Bancorp true, complete and accurate list copies (or, with respect to oral arrangements, accurate written summaries) of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownershippurchase, stock bonus, stock purchase, restricted stockownership, stock option, severanceperformance share, welfare stock appreciation right, phantom stock, savings and fringe benefit profit-sharing plans; any employment, survivor deferred compensation, incentive compensation, bonus, consulting and group insurance contracts; any other incentive, welfare, life insurance, split dollar death or other life insurance survivor's benefit, health insurance, sickness, disability, medical, surgical, hospital, severance, layoff and vacation plans, contracts or arrangements; and employee benefit planplans or agreements sponsored, employment maintained or severance agreements contributed to by VCB and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) Bank for employees of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofBank.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Share Exchange Agreement (Columbia Bancorp \Or\), Share Exchange Agreement (Columbia Bancorp \Or\)
Employee Benefit Plans. (ia) On Prior to the date hereof, Farmland has provided CHSC with a list identifying each material "employee benefit plan," as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure ScheduleERISA, Cardinal has set forth a complete each material employment, severance or similar contract, plan, arrangement or policy applicable to any director, former director, employee or former employee of Farmland and accurate list of all existing bonuseach material plan or arrangement (written or oral), incentive, deferred providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit planbenefits) which is maintained, employment administered or severance agreements contributed to by Farmland and all similar practices, policies and arrangements in which covers any current employee or director or former employee or director of Farmland, or under which Farmland has any liability. Such material plans (the “Employees”)excluding any such plan that is a "multiemployer plan", current or former consultant (the “Consultants”) or current or former director (the “Directors”as defined in Section 3(37) of Cardinal or any of its Subsidiaries participates or ERISA) are referred to which any such Employees, Consultants or Directors are a party (collectively herein as the “Compensation and Benefit "Farmland Employee Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan".
(iib) Each Compensation and Benefit Farmland Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorders, rules and regulations (including but not limited to, ERISA, to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the Securities Actaggregate, the Exchange Acthave a Material Adverse Effect on Farmland.
(c) Neither Farmland nor any affiliate of Farmland has incurred a liability under Title IV of ERISA that has not been satisfied in full, the Age Discrimination in Employment Act, and no condition exists that presents a material risk to Farmland or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, affiliate of Farmland of incurring any such liability other than liability for premiums due the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law Pension Benefit Guaranty Corporation (which premiums have been timely made. paid when due).
(d) Each Compensation and Benefit Farmland Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code is so qualified and has received been so qualified during the period from its adoption to date, and each trust forming a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan part thereof is exempt from federal income tax under pursuant to Section 501(a) of the Code.
(e) from No director or officer or other employee of Farmland or any of its Subsidiaries will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the Internal Revenue Service transactions contemplated hereby.
(“IRS”f) Each Farmland Employee Plan that provides for post-retirement health and medical, life or the Compensation and Benefit Plan uses a prototype other insurance benefits for retired employees of Farmland or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged been adequately reserved for in a transactionFarmland's financial statements.
(g) There has been no amendment to, written interpretation or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal announcement (whether or not written) by Farmland or any of its Subsidiaries to a material tax affiliates relating to, or penalty imposed by either Section 4975 change in employee participation or coverage under, any Farmland Employee Plan which would increase materially the expense of maintaining such Farmland Employee Plan above the level of the Code or Section 502 of ERISAexpense incurred in respect thereof for the 12 months ended May 31, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof1999.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Transaction Agreement (Farmland Industries Inc), Transaction Agreement (Cenex Harvest States Cooperatives)
Employee Benefit Plans. (i) On Section 6.03(m)(i4.01(t)(i) of Cardinal’s the Buyer Disclosure Schedule, Cardinal has set forth Schedule contains a complete and accurate list of all existing bonus, incentive, deferred compensation, pensionpension (including, without limitation, Buyer Pension Plans, as defined below), retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and (including, without limitation, “welfare plans” within the meaning of Section 3(1) of ERISA, fringe benefit plans, survivor life insuranceemployment, split dollar or other life insurance benefit planchange in control, employment retention or severance agreements, consulting agreements or arrangements and all similar practices, policies and arrangements maintained or contributed to (currently or within the last two years) by (A) Buyer or any Buyer Subsidiary and in which any current employee or former employee (the “Buyer Employees”), current consultant or former consultant (the “Buyer Consultants”) ), officer or current former officer (the “Buyer Officers”), or director or former director (the “Buyer Directors”) of Cardinal Buyer or any of its Subsidiaries Buyer Subsidiary participates or to which any such Buyer Employees, Consultants Buyer Consultants, Buyer Officers or Buyer Directors are a party parties or (B) any Buyer ERISA Affiliate (as defined below) (collectively, the “Buyer Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Neither Buyer nor any of its Subsidiaries Buyer Subsidiary has any commitment to create any additional Buyer Compensation and Benefit Plan or to modify or change any existing Buyer Compensation and Benefit Plan, except to the extent required by law and as otherwise contemplated by Sections 6.02 and 7.02 of this Agreement.
(ii) Each Except in a manner that would not reasonably be expected to have a material adverse effect on Buyer, each Buyer Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Buyer Compensation and Benefit Plan that which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Buyer Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Buyer Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation IRS and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal Buyer is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a such favorable determination letter. There is no material pending or, to the actual knowledge of CardinalBuyer, threatened legal action, suit or claim relating to the Buyer Compensation and Benefit Plans other than routine claims for benefitsbenefits thereunder. Neither Cardinal Buyer nor any of its Subsidiaries Buyer Subsidiary has engaged in a transaction, or omitted to take any action, with respect to any Buyer Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Buyer or any of its Subsidiaries Buyer Subsidiary to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans liability (other than for payment of premiums to the PBGC which have been made or will be made on a timely basis) under Title IV of ERISA has been or is expected to be incurred by Buyer or any subsidiary of Buyer with respect to any ongoing, frozen or terminated “single-employer plan,” within the meaning of Section 4001(a)(15) of ERISA, currently maintainedor formerly maintained by any of them, or maintained within the last six years, by Cardinal or any single-employer plan of its Subsidiaries or any entity (an a “Buyer ERISA AffiliateAffiliate Plan”) that which is considered one employer with Cardinal Buyer under Section 4001(a)(14) of ERISA or Section 414(b), (c) or (cm) of the Code is (a “Buyer ERISA Affiliate”). None of Buyer, any Buyer Subsidiary or was subject any Buyer ERISA Affiliate has contributed, or has been obligated to Title IV of ERISA or is or was contribute, to a multiemployer multi-employer plan under Subtitle E of Title IV of ERISA (as defined in ERISA Sections 3(37)(A) and 4001(a)(3)) at any time since September 26, 1980. No notice of a “reportable event”, within the meaning of Section 4043 of ERISA. To , for which the knowledge of Cardinal30-day reporting requirement has not been waived, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions has been required to be made under the terms of filed for any Buyer Compensation and Benefit Plan or by any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any Buyer ERISA Affiliate (x) has providedPlan within the 12-month period ending on the date hereof, or would reasonably be expected to and no such notice will be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of filed as a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation result of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.this
Appears in 2 contracts
Samples: Merger Agreement (Esb Financial Corp), Merger Agreement (Wesbanco Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i4.15 of the Parent Disclosure Schedule lists all employee pension plans (as defined in Section 3(2) of Cardinal’s Disclosure ScheduleERISA, Cardinal has set forth a complete all employee welfare plans (as defined in Section 3(1) of ERISA) and accurate list of all existing other bonus, stock option, stock purchase, performance share, stock appreciation or other equity based compensation, incentive, deferred compensation, pension, supplemental retirement, profit-sharing, thrift, savings, severance and other similar fringe or employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insuranceprograms or arrangements, split dollar and any employment, executive compensation, consulting or severance agreements, performance pay, loan or loan guarantee, change of control or other life insurance non-ERISA plans, written or otherwise, for the benefit planof, employment or severance agreements and all similar practicesrelating to, policies and arrangements in which any current or former employee or director of or consultant to Parent, any trade or business (the “Employees”), current whether or former consultant not incorporated) which is or was a member of a controlled group including Parent or which is under common control with Parent (the “Consultants”a "Parent ERISA Affiliate") or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2414 of the Code, or any Parent Subsidiary, that Parent, any Parent Subsidiary or any Parent ERISA Affiliate maintains or pursuant to which has any obligation, as well as each employee benefit plan with respect to which Parent, any Parent Subsidiary or a Parent ERISA Affiliate maintained or otherwise incurred any liability to within the consecutive five-year period ending on the Closing Date (collectively the "Parent Employee Plans"). Parent has provided the Company copies of (i) each such written Parent Employee Plan and all documents pursuant to which the Parent Employee Plans are maintained, funded and administered, including summary plan descriptions, (ii) the three most recent annual report on Form 5500 series, with accompanying schedules and attachments, filed with respect to each Parent Employee Plan required to make such a filing, and (iii) all governmental filings for the last three years, including, without limitation, excise tax returns and reportable events filings, and (iv) all governmental rulings, determinations, and opinions (and pending requests for governmental communications, rulings, determinations, and opinions) during the past three years.
(i) None of the Parent Employee Plans provides retiree medical or other retiree welfare benefits to any person (other than as required under COBRA), none of the Parent Employee Plans is a "multiemployer plan" as such term is defined in Section 3(37) of ERISA and no Parent Employee Plan is subject to the funding requirements of Section 412 of the Code or Section 302 of ERISA or is otherwise subject to Title IV of ERISA; (ii) there has been no non-exempt "prohibited transaction," as such term is defined in Section 406 of ERISA and Section 4975 of the Code, or a “Pension breach of fiduciary duty within the meaning of Section 404 of ERISA, with respect to any Parent Employee Plan”, which, individually or in the aggregate, is reasonably likely to have a Parent Material Adverse Effect; (iii) all Parent Employee Plans are in compliance with the requirements prescribed by any and that all statutes (including ERISA and the Code), orders, or governmental rules and regulations currently in effect with respect thereto (including all applicable requirements for notification to participants or the Department of Labor, the PBGC, IRS or Secretary of the Treasury) except as is not reasonably likely to have individually or in the aggregate a Parent Material Adverse Effect, and Parent and each Parent Subsidiary have performed all obligations required to be performed by them under, and are not in default under or violation of any of the Parent Employee Plans except as is not reasonably likely to have individually or in the aggregate a Parent Material Adverse Effect; (iv) each Parent Employee Plan intended to be qualified qualify under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related and each trust under such Compensation and Benefit Plan is exempt from tax intended to qualify under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation Code is so qualified and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing a favorable determination letter from the IRS, such determination letter has not been revoked or in not receiving a favorable determination letter. There is no material pending orthreatened to be revoked by the IRS, to the knowledge of CardinalParent, threatened legal action, suit nothing has occurred since the date of such determination letter that could adversely affect the tax exempt status of such Parent Employee Plan or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period exempt status of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Coderelated trust, and each such Compensation Parent Employee Plan which is not an IRS-approved master or prototype plan has been amended to comply with GUST and Benefit submitted to the IRS for a determination letter that the Parent Employee Plan, as amended, satisfies the qualification requirements of Section 401(a) the Code; (v) except as provided by Sections 204(h), 4041(a)(2) or 104(b)(1) of ERISA, each Parent Employee Plan may can be amended or terminated at any time without incurring liability thereunderapproval from any person, without advance notice, and there has been no communication without any liability other than for benefits accrued prior to Employees by Cardinal such amendment or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
termination; (vi) Cardinal except as set forth in Section 4.15 of the Parent Disclosure Schedule, all benefits due under each Employee Plan have been timely paid and its Subsidiaries do not maintain there is no material lawsuit or claim, other than routine uncontested claims for benefits, pending, or to the knowledge of Parent, any Compensation Parent ERISA Affiliate or Parent Subsidiary, threatened, against any Parent Employee Plan or the fiduciaries of any such plan or otherwise involving or pertaining to any such plan, and Benefit Plans covering foreign Employees.
no basis exists for any such lawsuit or claim; (vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except except as set forth on in Section 6.03(m)(viii) 4.15 of Cardinal’s the Parent Disclosure Schedule, the consummation no Parent Employee Plan provides for any severance pay, accelerated payments, deemed satisfaction of the transactions contemplated by this Agreement would notgoals or conditions, directly new or indirectly (includingincreased benefits, without limitationforgiveness or modification of loans, or vesting conditioned in whole or in part upon a "change in control" of Parent, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result such term is defined in the vesting Parent Employee Plan or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the CodeCode (and regulations promulgated thereunder), without regard to whether such payment is reasonable compensation for personal services performed any Parent ERISA Affiliate or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit PlansParent Subsidiary, or any actions taken plant closing; (viii) no agreement, commitment, or omitted thereunder, violate Section 409A of the Codeobligation exists to increase any benefits under any Parent Employee Plan or to adopt any new Parent Employee Plan; and (ix) no Parent Employee Plan has any unfunded accrued benefits that are not fully reflected in Parent's financial statements.
Appears in 2 contracts
Samples: Merger Agreement (Crossmann Communities Inc), Merger Agreement (Crossmann Communities Inc)
Employee Benefit Plans. (ia) On Schedule 5.17 lists all employee benefit plans (as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure ScheduleERISA) and all bonus, Cardinal has set forth a complete and accurate list of all existing bonusstock option, stock purchase, incentive, deferred compensation, pension, supplemental retirement, profit-sharinghealth, thriftlife, savingsor disability insurance, dependent care, severance and other similar fringe or employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar programs or other life insurance benefit plan, arrangements and any current employment or executive compensation or severance agreements and all similar practices, policies and arrangements in which written or otherwise maintained or contributed to or for the benefit of or relating to any current employee or former employee of the Operating Company or Stellar Propane or any trade or business (whether or not incorporated) that is a member of a controlled group including the Operating Company or Stellar Propane or that is under common control with the Operating Company or Stellar Propane within the meaning of Section 414 of the Code (an “EmployeesERISA Affiliate”), current to the extent that the Operating Company, Stellar Propane or former consultant any ERISA Affiliate currently has or may incur liability for payments or benefits thereunder, as well as each plan with respect to which the Operating Company, Stellar Propane or an ERISA Affiliate could incur liability under Section 4069 of ERISA (if such plan has been or was terminated) or Section 4212(c) of ERISA (collectively, the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed set forth on Section 6.03(m)(i) of Cardinal’s Disclosure ScheduleSchedule 5.17, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and no Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code. None of the Operating Company, Stellar Propane or any ERISA Affiliate has incurred any liability (contingent or otherwise) with respect to modify any Benefit Plan (other than with respect to contributions required thereunder) that, individually or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and in the aggregate, is or has a Material Adverse Effect; each Benefit Plan has been operated and administered maintained in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, ERISA and the Code; and there has been no violation of any reporting or disclosure requirement imposed by ERISA or the Code that, individually or in the Securities Actaggregate, the Exchange Act, the Age Discrimination in Employment Act, is or any regulations or rules promulgated thereunder, and all 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 madehas a Material Adverse Effect. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related Code, and each trust under such Compensation and Benefit Plan is intended to be exempt from tax under Section 501(a) of the Code) from , has been determined to be so qualified or exempt by the Internal Revenue Service (“IRS”) or the Compensation and . For each Benefit Plan uses that has received such a prototype determination, there has been no event, condition or volume submitter plan circumstance that has adversely affected or is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could likely to adversely affect such qualification or that are likely to result qualified status. No “party in the revocation interest” (as defined in Section 3(14) of ERISA) of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending orBenefit Plan has participated in, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in or been a transaction, or omitted to take any action, with respect party to any Compensation and Benefit Plan transaction that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either is prohibited under Section 4975 of the Code or Section 502 406 of ERISA, assuming for purposes of ERISA and not exempt under Section 4975 of the Code that the taxable period or Section 408 of ERISA (or any such transaction expired as administrative class or individual exemption issued thereunder), respectively. With respect to any Benefit Plan, (i) none of the date hereof.
(iii) No Compensation Operating Company, Stellar Propane or any ERISA Affiliate has had asserted against it any claim for Taxes under Chapter 43 of Subtitle D of the Code and Benefit Plans currently maintainedSection 5000 of the Code, or maintained within the last six yearsfor penalties under ERISA Section 502(c), by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(bi) or (c) l), nor, to the Knowledge of the Code Sellers, is there a basis for any such claim, and (ii) no officer, director or was subject to employee of the Sellers, the Operating Company or Stellar Propane has committed a breach of any fiduciary responsibility or obligation imposed by Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV I of ERISA. To the knowledge of CardinalOther than routine claims for benefits, there is no claim or proceeding (including any audit or investigation) pending investigation or, to the Knowledge of the Sellers, threatened, involving any Benefit Plan by any Person, or enforcement action by the PBGCIRS, the DOL or IRS United States Department of Labor or any other governmental agency with respect to Governmental Authority against such Benefit Plan or the Operating Company, Stellar Propane or any Compensation and Benefit PlanERISA Affiliate.
(ivb) All contributions Schedule 5.17 contains a list of all (i) employment agreements involving the Operating Company, Stellar Propane or any ERISA Affiliate, (ii) agreements with consultants who are individuals obligating the Operating Company, Stellar Propane or any ERISA Affiliate to make annual cash payments in an amount of $100,000 or more, and (iii) severance agreements, programs and policies of the Operating Company or Stellar Propane with or relating to their respective employees, except such programs and policies required to be maintained by Law. The Sellers have made under the terms available to Buyer accurate and complete copies of all such agreements, plans, programs and other arrangements.
(c) There will be no payment, accrual of additional benefits, acceleration of payments or vesting of any Compensation and benefit under any Benefit Plan or any employee benefit arrangements under any collective bargaining other agreement or arrangement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinalthe Operating Company, any of its Subsidiaries Stellar Propane or any ERISA Affiliate (x) has providedis a party, and no employee, officer or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) director of the CodeOperating Company, and (y) has taken Stellar Propane or any actionERISA Affiliate will become entitled to severance, termination allowance or omitted to take any actionsimilar payments, that has resulted, solely by reason of entering into or would reasonably be expected to result, in connection with the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAtransactions contemplated by this Agreement.
(vd) Neither Cardinal nor No Benefit Plan that is a welfare benefit plan within the meaning of Section 3(1) of ERISA provides benefits to former employees of the Operating Company, Stellar Propane or any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, ERISA Affiliate other than benefits mandated as required by Section 4980B of the CodeCode or similar state Laws. The Operating Company, Stellar Propane and each such Compensation ERISA Affiliate have complied in all material respects with the provisions of Part 6 of Title I of ERISA and Benefit Plan may be amended or terminated without incurring liability thereunderSections 4980B, 9801, 9802, 9811 and there has been no communication to Employees by Cardinal or any 9812 of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basisthe Code.
(vie) Cardinal There are no Legal Proceedings relating to any Benefit Plan pending or, to the Knowledge of the Sellers, threatened between the Operating Company, Stellar Propane or any ERISA Affiliate and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employeesof their respective employees, other than Legal Proceedings that would not, individually or in the aggregate, result in any charge, assessment, levy, fine or other liability being imposed upon or incurred by the Operating Company, Stellar Propane or any ERISA Affiliate. No strikes, work stoppage, grievance, claim of unfair labor practice, or labor dispute against the Operating Company, Stellar Propane or any ERISA Affiliate has occurred, is pending or, to the Knowledge of the Sellers, threatened, and, to the Knowledge of the Sellers, there is no basis for any of the foregoing.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiif) Except as set forth on Section 6.03(m)(viiiin Schedule 5.17, none of the Operating Company, Stellar Propane or any ERISA Affiliate sponsors or has ever sponsored, maintained, contributed to, or incurred an obligation to contribute or incurred a liability (contingent or otherwise) with respect to any Multiemployer Plan or to a Multiple Employer Plan. “Multiemployer Plan” has the meaning set forth in Sections 3(37) and 4001(a)(3) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of ERISA. “Multiple Employer Plan” means any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Employee Benefit Plan other sponsored by more than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plansone employer, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A Sections 4063 or 4064 of ERISA or Section 413(c) of the Code that are subject to claims Code. None of creditorsthe Operating Company, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal Stellar Propane or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any actionERISA Affiliate has, or omitted reasonably could be expected to take have, any action, liability under Title IV of ERISA with respect to or as part any other type of any Compensation Benefit Plan. All contributions to and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized payments under any IRS guidance with Benefit Plan, including any Multiemployer Plan or Multiple Employer Plan, required in respect to Section 409A is necessary or available of periods ending on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to Closing Date have been made by Sellers before the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeClosing Date.
Appears in 2 contracts
Samples: Interest Purchase Agreement (Inergy L P), Interest Purchase Agreement (Star Gas Partners Lp)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) Schedule 4.17 of Cardinal’s the Company Disclosure Schedule, Cardinal has set forth Schedule contains a correct and complete list identifying each material benefit and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit compensation plan, employment agreement or arrangement, including, without limitation, any plan or agreement to provide severance agreements and all similar practicesor fringe benefits, policies and arrangements in which any current is maintained, administered or former employee (contributed to by the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Company or any of its Subsidiaries participates and covers any employee or former employee of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such Employeesplans (and, Consultants if applicable, related trust or Directors funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent. Such plans are a party (referred to collectively herein as the “Compensation and Benefit Employee Plans.”).
(b) Except as required by the terms of otherwise specifically provided in this Agreement regarding the Options and the Restricted Shares, the consummation of the Transactions alone will not entitle any, current or as Previously Disclosed on Section 6.03(m)(iformer, employee or independent contractor of the Company or any of its Subsidiaries to severance pay or accelerate the time of payment or vesting or trigger any payment of funding (through a grantor trust or otherwise) of Cardinal’s Disclosure Schedulecompensation or benefits under, neither Cardinal increase the amount payable or trigger any other material obligation pursuant to, any Employee Plan.
(c) Neither the Company nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan liability in respect of post-retirement health, medical or to modify life insurance benefits for retired, former or change any existing Compensation and Benefit Plancurrent employees of the Company or its Subsidiaries.
(iid) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, Neither the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal Company nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made to or have been reflected on Cardinal’s financial statements. None of Cardinalsubject to, or is currently negotiating in connection with entering into, any of its Subsidiaries collective bargaining agreement or any ERISA Affiliate (x) has provided, other contract or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, understanding with a labor union or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAorganization.
(ve) Neither Cardinal nor Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, each of the Company and its Subsidiaries is in compliance with all Applicable Laws relating to employment and employment practices, and is not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basisforegoing.
(vif) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect There is no action, suit, investigation, audit or proceeding pending against or involving or, to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation Knowledge of the transactions contemplated by this Agreement would notCompany, directly threatened against or indirectly (includinginvolving, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle Employee Plan before any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit PlanGovernmental Authority.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Shanda Interactive Entertainment LTD), Merger Agreement (Ku6 Media Co., LTD)
Employee Benefit Plans. (ia) On Prior to the date hereof, the Company has provided Acquiror with a list (set forth on Schedule 3.14) identifying each material "employee benefit plan," as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974 ("ERISA"), Cardinal has set forth a complete each material employment, severance or similar contract, plan, arrangement or policy applicable to any director, former director, employee or former employee of the Company and accurate list of all existing bonuseach material plan or arrangement (written or oral), incentive, deferred providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit planbenefits) which is maintained, employment administered or severance agreements contributed to by the Company and all similar practices, policies and arrangements in which covers any current employee or director or former employee or director of the Company, or under which the Company has any liability. Such material plans (the “Employees”)excluding any such plan that is a "multiemployer plan", current or former consultant (the “Consultants”) or current or former director (the “Directors”as defined in Section 3(37) of Cardinal or any of its Subsidiaries participates or ERISA) are referred to which any such Employees, Consultants or Directors are a party (collectively herein as the “Compensation and Benefit "Company Employee Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan".
(iib) Each Compensation and Benefit Company Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorders, rules and regulations (including but not limited to, ERISA, to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the Securities Actaggregate, have a Material Adverse Effect on the Exchange ActCompany.
(c) Neither the Company nor any affiliate of the Company has incurred a liability under Title IV of ERISA that has not been satisfied in full, and no condition exists that presents a material risk to the Age Discrimination in Employment Act, Company or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, affiliate of the Code, Company of incurring any such liability other than liability for premiums due the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law Pension Benefit Guaranty Corporation (which premiums have been timely made. paid when due).
(d) Each Compensation and Benefit Company Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code is so qualified and has received been so qualified during the period from its adoption to date, and each trust forming a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan part thereof is exempt from federal income tax under pursuant to Section 501(a) of the Code.
(e) from Except as set forth in Schedule 3.14, no director or officer or other employee of the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Company or any of its Subsidiaries will become entitled to a material tax any retirement, severance or penalty imposed by either Section 4975 similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to any employee stock option or other benefit under any stock option plan or compensation plan or arrangement of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 Company) solely as a result of the Code that transactions contemplated hereby.
(f) Except as reflected in the taxable period of any such transaction expired as of Company SEC Documents filed prior to the date hereof.
(iii) No Compensation , no Company Employee Plan provides post-retirement health and Benefit Plans currently maintainedmedical, life or maintained within other insurance benefits for retired employees of the last six years, by Cardinal Company or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit PlanSubsidiaries.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiig) Except as set forth on Section 6.03(m)(viiiSchedule 3.14, there has been no amendment to, written interpretation or announcement (whether or not written) of Cardinal’s Disclosure Schedule, by the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal Company or any of its Subsidiaries that affiliates relating to, or change in employee participation or coverage under, any Company Employee Plan which would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as increase materially the expense of maintaining such terms are defined in Section 280G Company Employee Plan above the level of the Code), without regard to whether such payment is reasonable compensation expense incurred in respect thereof for personal services performed or to be performed in the future12 months ended on the Company Balance Sheet Date.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Exxon Corp), Merger Agreement (Mobil Corp)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal Centra has set forth Previously Disclosed a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Centra or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(iSubject to Sections 5.01(d) of Cardinal’s Disclosure Scheduleand 6.03(m)(ix), neither Cardinal Centra nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal Centra is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of CardinalCentra, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal Centra nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Centra or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal Centra or any of its Subsidiaries or any entity (an and “ERISA Affiliate”) that is considered one employer with Cardinal Centra under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of CardinalCentra, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal Centra or any of its Subsidiaries is a party have been timely made or have been reflected on CardinalCentra’s financial statements. None of CardinalCentra, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal Centra nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or other retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal Centra or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or other retiree death or other benefits on a permanent basis.
(vi) Cardinal Centra and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal Centra has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the The consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Centra Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal Centra nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinalnone of United, Centra or the Surviving Corporation, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any the chief executive officer of its employees that Centra will have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditorsterminated his full time employment, and except as (A) all payments and expenses incident to his termination, excluding perquisites, health and welfare benefits and other compensation not included in supplemental executive retirement plans, salary, severance and bonus, will not exceed the amount set forth on Section 6.03(m)(xi) of Cardinal’s the Disclosure ScheduleSchedule and (B) all payments and expenses incident to his termination related to perquisites, no such grantor trusts are required to be established on or after health and welfare benefits and other compensation not included in supplemental executive retirement plans, salary, severance and bonus will not exceed the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed amount set forth on Section 6.03(m)(xi) of Cardinal’s the Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xiiAs of the Effective Date, all supplemental employment retirement plans (SERPs) between Centra and any of Cardinal’s Disclosure Schedule, neither Cardinal its employees will have been terminated.
(xiii) Neither Centra nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal Centra or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal Centra or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal Centra nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal Centra or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Centra Financial Holdings Inc), Merger Agreement (United Bankshares Inc/Wv)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of CardinalCNB Financial’s Disclosure Schedule, Cardinal has set forth Letter contains a complete and accurate list of all existing bonuspension, incentiveretirement, stock option, stock purchase, stock ownership, savings, stock appreciation right, profit sharing, deferred compensation, pensionconsulting, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchasegroup insurance, restricted stock, stock option, severance, welfare severance and fringe other benefit plans, survivor life insurancecontracts, split dollar agreements and arrangements, including, but not limited to, “employee benefit plans,” as defined in Section 3(3) of ERISA, incentive and welfare policies, contracts, plans and arrangements and all trust agreements related thereto with respect to any present or former directors, officers or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) employees of Cardinal CNB Financial or any of its Subsidiaries participates or (hereinafter referred to which any such Employees, Consultants or Directors are a party (collectively as the “Compensation and Benefit CNB Financial Employee Plans”). Except as required by the terms CNB Financial has previously delivered or made available to United Financial Bancorp true and complete copies of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinaleach agreement, plan and other documents referenced in CNB Financial’s Disclosure ScheduleLetter, neither Cardinal nor along with, where applicable, copies of the IRS Form 5500 or 5500-C for the most recently completed year. There has been no announcement or commitment by CNB Financial or any of its Subsidiaries has any commitment to create any an additional Compensation and Benefit Plan CNB Financial Employee Plan, or to modify or change amend any existing Compensation and Benefit CNB Financial Employee Plan.
(ii) Each Compensation and Benefit , except for amendments required by applicable law which do not materially increase the cost of such CNB Financial Employee Plan. To the Knowledge of CNB Financial, each CNB Financial Employee Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the CodeIRC, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or 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 CodeIRC, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law have been timely mademade or any interest, fines, penalties or other impositions for late filings have been paid in full.
(ii) There is no pending or threatened litigation, administrative action or proceeding relating to any CNB Financial Employee Plan. All of the CNB Financial Employee Plans comply in all material respects with all applicable requirements of ERISA, the IRC and other applicable laws. There has occurred no “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the IRC) with respect to the CNB Financial Employee Plans which is likely to result in the imposition of any penalties or taxes upon CNB Financial or any of its Subsidiaries under Section 502(i) of ERISA or Section 4975 of the IRC.
(iii) Each Compensation and Benefit CNB Financial Employee Plan that is an “employee pension benefit plan” within the meaning of (as defined in Section 3(2) of ERISA (a “Pension Plan”ERISA) and that which is intended to be qualified under Section 401(a) of the Code IRC (a “CNB Financial Qualified Plan”) has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is CNB Financial and its Subsidiaries are not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a such favorable determination letter. There No CNB Financial Qualified Plan is no material pending or, to an “employee stock ownership plan” (as defined in Section 4975(e)(7) of the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefitsIRC). Neither Cardinal CNB Financial nor any Subsidiary of CNB Financial or any ERISA Affiliate has ever sponsored a CNB Financial Qualified Plan that is subject to Title IV of ERISA (any such plan shall be referred to herein as a “CNB Financial Pension Plan”). Neither CNB Financial nor its Subsidiaries or any ERISA Affiliate has engaged contributed to any “multiemployer plan,” as defined in a transactionSection 3(37) of ERISA, on or omitted to take any actionafter September 26, with 1980.
(iv) With respect to any Compensation and Benefit each CNB Financial Employee Plan that would reasonably be expected to subject Cardinal is a “multiple employer plan” (as defined in Section 4063 of ERISA): (A) none of CNB Financial or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 Subsidiaries, nor any of the Code or Section 502 of ERISAtheir respective ERISA Affiliates, assuming for purposes of Section 4975 of the Code has received any notification, nor has any actual knowledge, that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal if CNB Financial or any of its Subsidiaries or any entity of their respective ERISA Affiliates were to experience a withdrawal or partial withdrawal from such plan it would incur withdrawal liability that would be reasonably likely to have a Material Adverse Effect on CNB Financial; and (an “ERISA Affiliate”B) that is considered one employer with Cardinal under Section 4001(a)(14) none of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal CNB Financial or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of CardinalSubsidiaries, nor any of its Subsidiaries or their respective ERISA Affiliates, has received any ERISA Affiliate (x) notification, nor has providedany reason to believe, that any CNB Financial Employee Plan is in reorganization, has been terminated, is insolvent, or would reasonably may be expected to in reorganization, become insolvent or be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAterminated.
(v) Each CNB Financial Employee Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the IRC) and which has not been terminated has been operated since January 1, 2005 in good faith compliance with Section 409A of the IRC and the regulations issued under Section 409A of the IRC.
(vi) Neither Cardinal CNB Financial nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree longfor post-term care insurance retirement or retiree death or other post-employment benefits under any Compensation and Benefit PlanCNB Financial Employee Plan that cannot be amended or terminated upon 60 days’ notice or less without incurring any liability thereunder, other than benefits mandated except for coverage required by Part 6 of Title I of ERISA or Section 4980B of the CodeIRC, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereundersimilar state laws, and there has been no communication to Employees the cost of which is borne by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employeesthe insured individuals.
(vii) With All contributions required to be made with respect to each Compensation any CNB Financial Employee Plan by applicable law or regulation or by any plan document or other contractual undertaking, and Benefit all premiums due or payable with respect to insurance policies funding any CNB Financial Employee Plan, if applicablefor any period through the date hereof have been timely made or paid in full, Cardinal has provided or to the extent not required to be made available or paid on or before the date hereof, have been fully reflected in the financial statements of CNB Financial. All anticipated contributions and funding obligations are accrued on CNB Financial’s consolidated financial statements to United, true and complete copies the extent required by GAAP. Each CNB Financial Employee Plan that is an employee welfare benefit plan under Section 3(1) of existing: ERISA either (A) Compensation is funded through an insurance company contract and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would is not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individualwelfare benefit fund” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A Section 419 of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xiIRC or (B) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Scheduleunfunded.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (United Financial Bancorp, Inc.), Merger Agreement (CNB Financial Corp.)
Employee Benefit Plans. (i) On With respect to any plan or arrangement of Xxxxx or Xxxxx Subsidiary Banks which constitutes an employee benefit plan within the meaning of Section 6.03(m)(i3(3) of Cardinal’s Disclosure ScheduleERISA:
(a) Except for liabilities to the Pension Benefit Guaranty Corporation pursuant to Section 4007 of ERISA, Cardinal all of which have been fully paid, and except for liabilities to the Internal Revenue Service under Section 4971 of the Internal Revenue Code of 1986, if any, all of which have been fully paid, neither Xxxxx nor either Xxxxx Subsidiary Bank has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (liability to the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates Pension Benefit Guaranty Corporation or to which the Internal Revenue Service with respect to any such Employees, Consultants or Directors are a party (pension plan qualified under Section 401 of the “Compensation and Benefit Plans”). Except as required by the terms Internal Revenue Code of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan1986.
(iib) Each Compensation All “employee benefit plans”, as defined in Section 3(3) of ERISA, which cover one or more employees employed by Xxxxx or Xxxxx Subsidiary Banks (each individually, a “Plan”, and Benefit Plan has been operated and administered collectively, the “Plan”) comply in all material respects in accordance with its terms and ERISA and, where applicable for tax-qualified or tax-favored treatment, with applicable lawthe Internal Revenue Code of 1986. As of December 31, including2007, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or no material liability under any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an not reflected in the Xxxxx Financial Statements (other than such normally unrecorded liabilities under the Plans for sick leave, holiday, education, bonus, vacation, incentive compensation and anniversary awards, provided that such liabilities are not in any event material). Other than remedial measures under any IRS voluntary correction program, neither the Plans nor any trustee or administrator thereof has engaged in a “employee pension benefit planprohibited transaction” within the meaning of Section 3(2) 406 of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinalwhere applicable, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Internal Revenue Code or Section 502 of ERISA, assuming 1986 for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that which no exemption is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) nor have there been any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute paymentreportable events” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A Section 4043 of ERISA for which the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non30-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Scheduleday notice therefor has not been waived.
(xiic) Except No litigation is pending against any plan or plan fiduciary seeking the payment of benefits or alleging a breach of trust or fiduciary duty by any plan fiduciary.
(d) Neither Xxxxx nor either Xxxxx Subsidiary Bank is a party to any multiemployer pension plan as set forth on defined in Section 6.03(m)(xii414(f) of Cardinal’s Disclosure Schedule, neither Cardinal nor any the Internal Revenue Code of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part 1986 and Section 3(37) of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeERISA.
Appears in 2 contracts
Samples: Merger Agreement (Abigail Adams National Bancorp Inc), Merger Agreement (Premier Financial Bancorp Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i3.20(a) of Cardinal’s the Pavilion Disclosure Schedule, Cardinal has set forth Schedule contains a complete and accurate list of all existing bonus, incentive, deferred compensation, pensionpension (including, without limitation, Pension Plans defined below), retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and (including, without limitation, “welfare plans” within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements maintained or contributed to (currently or within the last six years) by (i) Pavilion or Lenawee and in which any current employee or former employee (the “Employees”), current consultant or former consultant (the “Consultants”) ), officer or current former officer (the “Officers”), or director or former director (the “Directors”) of Cardinal Pavilion or any of its the Subsidiaries participates or to which any such Employees, Consultants Consultants, Officers or Directors are a party parties or (ii) any ERISA Affiliate (as defined below) (collectively, the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Neither Pavilion nor any of its the Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan, except to the extent required by law.
(iib) Each Compensation and Benefit Plan has been operated and administered in all material respects substantially in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan (whether an individually designed or prototype plan) that is an “employee pension benefit plan” within the meaning of (as defined in Section 3(2) of ERISA (a “Pension Plan”ERISA) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or . Neither Pavilion nor Lenawee has received notice from the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterIRS, and Cardinal is Pavilion does not aware have knowledge of any circumstances that could adversely affect such qualification or that are likely to result in the revocation by the IRS, of any existing favorable determination letter or in not receiving a the plan’s favorable determination letter. There is no material pending or, to the knowledge of CardinalPavilion, threatened threatened, legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefitsbenefits thereunder. Neither Cardinal Pavilion nor any of its the Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Pavilion or any of its the Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iiic) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal None of Pavilion or any of its Subsidiaries the Subsidiaries, or any entity (an “ERISA Affiliate”) that which is considered one employer with Cardinal Pavilion or Lenawee under Section 4001(a)(14) of ERISA or Section 414(b), (c) or (cm) of the Code is (an “ERISA Affiliate”), (i) has ever sponsored, maintained or was been obligated to contribute to any Pension Plan subject to either Title IV of ERISA or is the funding requirements of Section 412 of the Code; or was (ii) has contributed, or has been obligated to contribute, to a multiemployer plan under Subtitle E of Title IV of ERISAERISA (as defined in ERISA Sections 3(37)(A) and 4001(a)(3)) at any time since September 26, 1980. To the knowledge of Cardinal, there There is no pending investigation or enforcement action by the PBGC, the DOL or Department of Labor, the IRS or any other governmental agency Governmental Authority with respect to any Compensation and Benefit Plan.
(ivd) All contributions required to be made under the terms of any Compensation and Benefit Plan or ERISA Affiliate plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal Pavilion or any of its the Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate the Pavilion Financial Statements.
(xe) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Except as set forth in Section 401(a)(293.20(e) of the CodePavilion Disclosure Schedule, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal neither Pavilion nor any of its the Subsidiaries has any obligations to provide retiree health and retiree life insurance, retiree long-term care insurance or other retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vif) Cardinal Pavilion and its any of the Subsidiaries do not maintain any foreign Compensation and Benefit Plans covering foreign EmployeesPlans.
(viig) With respect to each Compensation and Benefit Plan, if applicable, Cardinal Pavilion or Lenawee has provided or made available to UnitedFirst Defiance, true and complete copies of existingof: (Ai) Compensation and Benefit Plan documents and all subsequent amendments thereto; (Bii) trust instruments and insurance contractscontracts and all subsequent amendments thereto; (Ciii) two the most recent annual returns (Forms 5500 filed with the IRS5500) and financial statements; (D) most recent actuarial report and financial statement; (Eiv) the most recent summary plan descriptiondescriptions and all subsequent summaries of material modifications; (Fv) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRSIRS with respect to each Compensation and Benefit Plan that is intended to comply with Code § 401(a); and (Hvi) any Form 5310 5310, Form 5310A, Form 5300 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and IRS within the Code (including 401(k) and 401(m) tests)twelve months ending immediately before the date hereof.
(viiih) Except as set forth on disclosed in Section 6.03(m)(viii3.20(h) of Cardinal’s the Pavilion Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) ), reasonably be expected to (Ai) except as provided in Section 6.01(d) of this Agreement, entitle any Employee, Officer, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (Bii) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (Ciii) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Pavilion Bancorp Inc), Merger Agreement (First Defiance Financial Corp)
Employee Benefit Plans. (ia) On The Company has provided Parent with a list identifying each material "employee benefit plan", as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974 ("ERISA"), Cardinal has set forth a complete each employment, severance or similar contract, plan, arrangement or policy applicable to any director or officer of the Company and accurate list of all existing bonuseach material plan or arrangement, incentive(written or oral), deferred providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit planbenefits) which is maintained, employment administered or severance agreements and all similar practices, policies and arrangements in which any current or former employee (contributed to by the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Company or any of its Subsidiaries participates affiliates (as defined in Section 10.14) and covers any employee or to which any such Employees, Consultants former employee of the Company or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries affiliates, or under which the Company or any of its affiliates has any commitment liability. Copies of such "employee benefit plans" (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof have been furnished to create Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any additional Compensation and Benefit Plan or such plan. Such plans are referred to modify or change any existing Compensation and Benefit Plancollectively herein as the "Company Employee Plans".
(iib) Each Compensation and Benefit Company Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorder, rules and regulations (including but not limited to, ERISA, to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the Securities Actaggregate, have a material adverse effect on the Exchange Act, Company.
(c) At no time has the Age Discrimination in Employment Act, Company or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by person who was at that time an affiliate of the Company maintained an employee benefit plan subject to Title IV of ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law have been timely made. .
(d) Each Compensation and Benefit Company Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code is so qualified and has received been so qualified during the period from its adoption to date, and each trust forming a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan part thereof is exempt from tax under pursuant to Section 501(a) of the Code.
(e) from the Internal Revenue Service (“IRS”) No director or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending officer or, to the knowledge of Cardinalthe Company, threatened legal action, suit or claim relating to other employee of the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Company or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect subsidiaries will become entitled to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinalretirement, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) benefit or any increase in compensation, (B) result in the vesting enhanced or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible accelerated benefit solely as a result of the limitations under Section 162(m) transactions contemplated hereby. Without limiting the generality of the Code and foregoing, no amount required to be paid or payable to or with respect to any employee of the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) Company or any of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of its subsidiaries in connection with the transactions contemplated by this Agreement hereby (including, without limitation, either solely as a result thereof or as a result of such transactions in conjunction with any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries other event) will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “"excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in " within the meaning of Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xif) As No Company Employee Plan provides post-retirement health and medical, life or other insurance benefits for retired employees of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal Company or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedulesubsidiaries.
(xiig) Except as set forth on Section 6.03(m)(xiiThere has been no amendment to, written interpretation or announcement (whether or not written) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of by the Code or that would reasonably be expected to subject Cardinal Company or any of its Subsidiaries to affiliates relating to, or change in employee participation or coverage under, any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any Company Employee Plan which would increase materially the expense of its Subsidiaries under Section 409A maintaining such Company Employee Plan above the level of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of expense incurred in respect thereof for the Code, respecting any such tax, interest or penalty under Section 409A of 12 months ended on the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeCompany Balance Sheet Date.
Appears in 2 contracts
Samples: Merger Agreement (Compaq Computer Corp), Merger Agreement (Tandem Computers Inc /De/)
Employee Benefit Plans. (ia) On Prior to the date hereof, Acquiror has provided the Company with a list (set forth on Schedule 4.14) identifying each material "employee benefit plan," as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure ScheduleERISA, Cardinal has set forth a complete each employment, severance or similar contract, plan, arrangement or policy applicable to any director, former director, employee or former employee of Acquiror and accurate list of all existing bonuseach material plan or arrangement (written or oral), incentive, deferred providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit planbenefits) which is maintained, employment administered or severance agreements contributed to by Acquiror and all similar practices, policies and arrangements in which covers any current employee or director or former employee or director of Acquiror, or under which Acquiror has any liability. Such material plans (the “Employees”)excluding any such plan that is a "multiemployer plan", current or former consultant (the “Consultants”) or current or former director (the “Directors”as defined in Section 3(37) of Cardinal or any of its Subsidiaries participates or ERISA) are referred to which any such Employees, Consultants or Directors are a party (collectively herein as the “Compensation and Benefit "Acquiror Employee Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan".
(iib) Each Compensation and Benefit Acquiror Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorders, rules and regulations (including but not limited to, ERISA, to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the Securities Actaggregate, the Exchange Acthave a Material Adverse Effect on Acquiror.
(c) Neither Acquiror nor any affiliate of Acquiror has incurred a liability under Title IV of ERISA that has not been satisfied in full, the Age Discrimination in Employment Act, and no condition exists that presents a material risk to Acquiror or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, affiliate of Acquiror of incurring any such liability other than liability for premiums due the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law Pension Benefit Guaranty Corporation (which premiums have been timely made. paid when due).
(d) Each Compensation and Benefit Acquiror Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code is so qualified and has received been so qualified during the period from its adoption to date, and each trust forming a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan part thereof is exempt from federal income tax under pursuant to Section 501(a) of the Code.
(e) from the Internal Revenue Service (“IRS”) No director or the Compensation and Benefit Plan uses a prototype officer or volume submitter plan that is the subject other employee of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Acquiror or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect will become entitled to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinalretirement, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) benefit or any increase in compensation, (B) result in the vesting enhanced or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible accelerated benefit solely as a result of the limitations under Section 162(m) of the Code and the regulations issued thereundertransactions contemplated hereby.
(xf) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of reflected in the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment Acquiror SEC Documents filed prior to the date hereof, no Acquiror Employee Plan provides post-retirement health and medical, life or following the Effective Time), neither United nor Cardinal, or any other insurance benefits for retired employees of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal Acquiror or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the futureSubsidiaries.
(xig) As of the Effective DateThere has been no amendment to, there are no supplemental employment retirement plans written interpretation or announcement (each, a “SERP”whether or not written) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal Acquiror or any of its subsidiaries as a resultaffiliates relating to, directly or indirectlychange in employee participation or coverage under, any Acquiror Employee Plan which would increase materially the expense of maintaining such Acquiror Employee Plan above the level of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following expense incurred in respect thereof for the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed 12 months ended on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedulethe Acquiror Balance Sheet Date.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Exxon Corp), Merger Agreement (Mobil Corp)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set Schedule 3.13 sets forth a complete and accurate list of all existing employment, change in control, bonus, incentive, deferred or incentive compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severanceprofit sharing, welfare retirement, multiemployer, vacation, sick leave, hospitalization or severance plans, “employee benefit plans” (as defined in Section 3(3) of ERISA) and material fringe benefit plansagreements, survivor life insuranceprograms, split dollar plans or other life insurance benefit planpolicies, employment sponsored, maintained or severance agreements and all similar practices, policies and arrangements contributed to by the Company Entities or in which any current the Employees participate or former employee are entitled to participate (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries Company has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, Buyer true and complete correct copies of existing: all documents (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two including the most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) plan document incorporating all plan amendments, the most recent summary plan description; (F, any related trust agreement or other funding mechanism, and, if applicable, the most recent IRS determination letter, Form 5500 and attached schedules and, to the extent applicable, audited financial statements and actuarial valuation reports) forms filed embodying the Benefit Plans. Each of the Benefit Plans is and has at all times been in compliance in all respects with its terms and all applicable provisions of ERISA, the IRC, and applicable law except where the failure to comply would not, individually or in the aggregate, result in, or reasonably be expected to result in material liability to the Company Entities, or reasonably be expected to interfere in any material respect with the PBGC conduct of the Company Entities’ business. The Company Entities are not a participating or contributing employer in any Multiemployer Plan with respect to Employees, and neither the Company Entities nor their ERISA Affiliates have incurred any withdrawal liability with respect to any multiemployer plan or any liability in connection with the termination or reorganization of any Multiemployer Plan. Except as otherwise set forth on Schedule 3.13, all due contributions, premiums or payments under or with respect to each Benefit Plan are current and will have been paid as of the Closing or accrued on the Closing Date Balance Sheets.
(b) The Benefit Plans intended to qualify under Section 401 of the IRC are so qualified and the trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the IRC, and nothing has occurred with respect to the operation of the Benefit Plans which could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any liability, penalty or tax under ERISA or the IRC.
(c) No Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the IRC and the Company Entities have not incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits for Employees (or their dependents, spouses or beneficiaries), except as required to avoid an excise tax under Section 4980B of the IRC or otherwise except as may be required pursuant to any other applicable Legal Requirement.
(d) Except as has not resulted in and would not reasonably be expected to result in material liability to the Company Entities, or reasonably be expected to interfere in any material respect with the conduct of the Company Entities’ business, with respect to each Benefit Plan, (i) no actions, suits or claims (other than routine claims for minimum payments); benefits in the ordinary course) are pending or, to the Knowledge of the Company, threatened, (Gii) most recent determination to the Knowledge of the Company, no facts or opinion letter issued circumstances exist that could give rise to any such actions, suits or claims, and (iii) to the Knowledge of the Company, no administrative investigation, audit or other administrative proceeding by the IRS; (H) any Form 5310 U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)other Governmental Authority are pending or threatened.
(viiie) Except as set forth disclosed on Section 6.03(m)(viiiSchedule 3.13(e) or as expressly provided for in this Agreement, neither the execution and delivery of Cardinal’s Disclosure Schedule, this Agreement nor the consummation of the transactions contemplated hereby (whether alone or in conjunction with any subsequent event(s) other than events contemplated by this Agreement would not, directly or indirectly the amended and restated employment agreements entered into by the Rollover Stockholders on the date hereof) will (including, without limitation, as a i) result of in any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director payment becoming due to any payment (including severance pay or similar compensation) or any increase in compensationemployee of the Company Entities, (Bii) increase any compensation benefits or funding to any Employee payable by the Company Entities, (iii) result in the vesting or acceleration of the time of payment or vesting of any benefits under such benefits, (iv) limit or restrict the right of the Company Entities to merge, amend or terminate any Compensation and Benefit Plan Plan, (v) cause the Company Entities to record additional compensation expense on its income statement with respect to any outstanding stock option or other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement equity-based award, or (Cvi) result in any material increase in payments or benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior pursuant to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation IRC. None of the Company Entities has an existing arrangement with an Employee providing for personal services performed or to be performed an excise tax gross up in respect of any excise taxes imposed by Section 4999 of the futureIRC.
(xif) As No Benefit Plan is maintained outside the jurisdiction of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any actionUnited States, or omitted to take covers any action, with respect to Employee residing or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of working outside the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeUnited States.
Appears in 2 contracts
Samples: Contribution and Merger Agreement, Contribution and Merger Agreement (American Renal Associates LLC)
Employee Benefit Plans. (iSchedule 4(p) On Section 6.03(m)(i) contains a true and complete list and description of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonus, incentive, deferred compensation, each pension, retirement, severance, welfare, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severancevacation, welfare and fringe deferred compensation, bonus or other incentive plan, or other employee benefit program, arrangement, agreement or understanding, or medical, vision, dental or other health plan, or life insurance or disability plan, retiree medical or life insurance plan or any other employee benefit plans, survivor life insuranceincluding, split dollar or other life insurance without limitation, any “employee benefit plan” (as defined in Section 3(3) of ERISA), employment to which IVOI contributes or severance agreements is a party or by which it is bound or under which it may have liability and all similar practices, policies and arrangements in under which any current employees or former employees of IVOI (or their beneficiaries) are eligible to participate or derive a benefit. Each employee benefit plan which is a “group health plan” (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”as such term is defined in Section 5000(b)(i) of Cardinal or any the Code) satisfies the applicable requirements of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (Section 4980B of the “Compensation and Benefit Plans”)Code. Except as required by the terms of this Agreement described on Schedule 4(p), IVOI has no formal plan or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedulecommitment, neither Cardinal nor any of its Subsidiaries has any commitment whether legally binding or not, to create any additional Compensation and Benefit Plan plan, practice or to agreement or modify or change any existing Compensation plan, practice or agreement that would affect any of its employees or terminated employees. Benefits under all employee benefit plans are as represented and Benefit Plan.
(ii) Each Compensation have not been and Benefit Plan has will not be increased subsequent to the date copies of such plans have been operated and administered in all material respects in accordance with its terms and with applicable law, including, but provided. IVOI does not limited contribute to or have any obligation to contribute to, ERISAhas not at any time contributed to or had an obligation to contribute to, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, sponsor or any regulations or rules promulgated thereundermaintain, and all filingshas not at any time sponsored or maintained, 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. Each Compensation and Benefit Plan that is an a “employee pension benefit multi-employer plan” (within the meaning of Section 3(23(37) of ERISA ERISA) for the benefit of employees or former employees of IVOI. IVOI has, in all material respects, performed all obligations, whether arising by operation of law, contract, or past custom, required to be performed under or in connection with the employee benefit plans disclosed on Schedule 4(p) (individually, a “Pension IVOI Employee Benefit Plan” and, collectively, the “IVOI Employees Benefit Plans”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter), and Cardinal is not aware IVOI has no knowledge of any circumstances that could adversely affect such qualification default or that are likely to result in the revocation of violation by any existing favorable determination letter or in not receiving a favorable determination letterother party with respect thereto. There is are no material pending orActions, to the knowledge of Cardinal, threatened legal action, suit suits or claim relating to the Compensation and Benefit Plans claims (other than routine claims for benefits. Neither Cardinal nor ) pending, or, to IVOI’s knowledge, threatened, against any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and IVOI Employee Benefit Plan or against the assets funding any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statementsIVOI Employee Benefit Plan. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security IVOI neither maintains nor contributes to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individualemployee welfare benefit” (as such terms are term is defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi3(i) of Cardinal’s Disclosure Schedule, no such grantor trusts are required ERISA) plan which provides any benefits to be established on retirees or after the Effective Time by the successor to Cardinal or any former employees of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure ScheduleIVOI.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Ivoice, Inc /Nj), Agreement and Plan of Merger (Ivoice, Inc /Nj)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal Virginia Commerce has set forth Previously Disclosed a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Virginia Commerce or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure ScheduleDisclosed, neither Cardinal Virginia Commerce nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal Virginia Commerce is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of CardinalVirginia Commerce, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal Virginia Commerce nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Virginia Commerce or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal Virginia Commerce or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal Virginia Commerce under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of CardinalVirginia Commerce, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal Virginia Commerce or any of its Subsidiaries is a party have been timely made or have been reflected on CardinalVirginia Commerce’s financial statements. None of CardinalVirginia Commerce, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal Virginia Commerce nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or other retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal Virginia Commerce or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or other retiree death or other benefits on a permanent basis.
(vi) Cardinal Virginia Commerce and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal Virginia Commerce has provided or made available to UnitedBuyer, true and complete copies of existing: of
(A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the The consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Virginia Commerce Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal Virginia Commerce nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United Buyer nor CardinalVirginia Commerce, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal Virginia Commerce or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”SERPs) between Cardinal Virginia Commerce and any of its employees that have and the Virginia Commerce Bank Executive and Director Deferred Compensation Plan (the “Deferred Compensation Plan”) has assets through a grantor trust or trusts of which Cardinal Virginia Commerce Bank is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedulethe Virginia Commerce Board has, no such grantor trusts are required to be established on or after within 30 days preceding the Effective Time by Date, taken action to terminate the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is and to distribute the vested account balances, if any to participants in a SERP or non-qualified deferred compensation plan lump sum prior to the Effective Date, but in any event, within 12 months of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedulesuch termination.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal Neither Virginia Commerce nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal Virginia Commerce or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal Virginia Commerce or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal Virginia Commerce nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal Virginia Commerce or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (United Bankshares Inc/Wv), Merger Agreement (Virginia Commerce Bancorp Inc)
Employee Benefit Plans. The transfer of a Definitive Note shall not be registered unless the prospective transferee (and if the transferee is a Plan, its fiduciary) has represented in writing to the Indenture Trustee that either (i) On Section 6.03(m)(i) it is not acquiring such Note with the assets of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan Investor or a Plan that is subject to modify Similar Law; or change any existing Compensation and Benefit Plan.
(ii) Each Compensation its acquisition and holding of such Note will not give rise to, in the case of a Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable lawInvestor, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of a nonexempt prohibited transaction under Section 3(2) 406 of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to resultor, in the imposition case of a lien under Section 412(nPlan that is subject to Similar Law, a violation of Similar Law. In addition, each prospective transferee that is a Benefit Plan Investor, including any fiduciary acting on behalf of a Benefit Plan Investor (“Benefit Plan Investor Fiduciary”) must have represented in writing that:
(a) If any of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure ScheduleIssuer, the consummation of Depositor, the transactions contemplated by this Agreement would notAdministrator, directly or indirectly (includingthe Owner Trustee, without limitationthe Delaware Trustee, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinalunderwriter, or any of their respective Subsidiaries will be obligated affiliated entities (the “Transaction Parties”), has provided or shall provide advice with respect to make the acquisition of the Notes by the Benefit Plan Investor, it has or shall provide such advice only to the Benefit Plan Investor Fiduciary which is independent of the Transaction Parties giving such advice, if any, and the Benefit Plan Investor Fiduciary either:
(i) is a payment bank as defined in Section 202 of the Investment Advisers Act of 1940 (the “Advisers Act”), or similar institution that is regulated and supervised and subject to periodic examination by a State or Federal agency;
(ii) is an Employee insurance carrier which is qualified under the laws of Cardinal more than one state to perform the services of managing, acquiring or any disposing of its Subsidiaries that would be characterized assets of a Benefit Plan Investor;
(iii) is an investment adviser registered under the Advisers Act, or, if not registered an as investment adviser under the Advisers Act by reason of paragraph (1) of Section 203A of the Advisers Act, is registered as an “excess parachute payment” investment adviser under the laws of the state in which it maintains its principal office and place of business;
(iv) is a broker-dealer registered under the Securities Exchange Act of 1934, as amended; or
(v) has, and at all times that the Benefit Plan Investor is invested in the Definitive Note will have, total assets of at least U.S. $50,000,000 under its management or control (provided that this clause (v) shall not be satisfied if the Benefit Plan Investor Fiduciary is either (A) the owner or a relative of the owner of an investing IRA or (B) a participant or beneficiary or a relative of a participant or beneficiary of the Benefit Plan Investor investing in the Definitive Note in such capacity);
(b) the Benefit Plan Investor Fiduciary is capable of evaluating investment risks independently, both in general and with respect to an individual who particular transactions and investment strategies, including the acquisition by the Benefit Plan Investor of the Definitive Note;
(c) the Benefit Plan Investor Fiduciary is a “disqualified individualfiduciary” (as such terms are defined in Section 280G of with respect to the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor Benefit Plan Investor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi3(21) of Cardinal’s Disclosure ScheduleERISA, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A 4975 of the Code, respecting any such taxor both, interest or penalty under Section 409A and is responsible for exercising independent judgment in evaluating the Benefit Plan Investor’s acquisition of the CodeDefinitive Note;
(d) none of the Transaction Parties has exercised any authority to cause the Benefit Plan Investor to invest in the Definitive Note or to negotiate the terms of the Benefit Plan Investor’s investment in the Definitive Note; and
(e) the Benefit Plan Investor Fiduciary has been informed by the Transaction Parties:
(i) in connection with the Benefit Plan Investor’s acquisition of the Notes (1) that none of the Transaction Parties is undertaking to provide impartial investment advice or to give advice in a fiduciary capacity, and (2) that no such entity has given investment advice or otherwise made a recommendation, (other than advice, if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failureany, Cardinal agrees to so correct prior given by an underwriter to the Effective Time. As a result, directly or indirectly, Benefit Plan Investor Fiduciary which satisfies the requirements of clause (a) above); and
(ii) of the transactions contemplated by this Agreement (including, without limitation, as a result existence and nature of any termination the Transaction Parties financial interests in the Benefit Plan Investor’s acquisition of employment prior to or following the Effective TimeDefinitive Note. The above representations in Sections 2.14(a), neither Cardinal nor any (b), (c), (d) and (e) are intended to comply with the Department of its Subsidiaries will Labor’s Reg. Sections 29 C.F.R. 2510.3-21(a) and (c)(1) as promulgated on April 8, 2016 (81 Fed. Reg. 20,997). If these regulations are revoked, repealed or no longer effective, these representations shall be obligated deemed to report any amount or withhold any amount not be in effect. Any Person that acquires a beneficial interest in a Book Entry Note shall be deemed to make the same representations as includable set forth above in income and subject to tax, interest or any penalty by any service provider (as defined under this Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code2.14.
Appears in 2 contracts
Samples: Indenture (Honda Auto Receivables 2018-1 Owner Trust), Indenture (Honda Auto Receivables 2018-1 Owner Trust)
Employee Benefit Plans. (i) On Section 6.03(m)(iXxxtixx 0.03(m)(i) of Cardinal’s Metropolitan's Disclosure Schedule, Cardinal has set forth Schedule contains a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements maintained or contributed to by Metropolitan or any of its Subsidiaries and in which any current employee or former employee (the “"Employees”"), current consultant or former consultant (the “"Consultants”") or current director or former director (the “"Directors”") of Cardinal Metropolitan or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “"Compensation and Benefit Plans”"). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Neither Metropolitan nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan, except as otherwise contemplated by Section 4.01(e) of this Agreement.
(iii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “"employee pension benefit plan” " within the meaning of Section 3(2) of ERISA (a “"Pension Plan”") and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“"IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter"), and Cardinal Metropolitan is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a such favorable determination letter. There is no material pending or, to the knowledge of CardinalMetropolitan, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefitsbenefits thereunder. Neither Cardinal Metropolitan nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Metropolitan or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iiiii) No Compensation and Benefit Plans currently maintained, liability (other than for payment of premiums to the PBGC that have been made or maintained within the last six years, will be made on a timely basis) under Title IV of ERISA has been or is expected to be incurred by Cardinal Metropolitan 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 any single-employer plan of any entity (an “"ERISA Affiliate”") that is considered one employer with Cardinal Metropolitan under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is (an "ERISA Affiliate Plan"). None of Metropolitan, any of its Subsidiaries nor any ERISA Affiliate has contributed, or was subject has been obligated to Title IV of ERISA or is or was contribute, to a multiemployer plan under Subtitle E of Title IV of ERISAERISA at any time since September 26, 1980. 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 Compensation and Benefit Plan or by any ERISA Affiliate Plan within the 12-month period ending on the date hereof, and no such notice will be required to be filed as a result of the transactions contemplated by this Agreement. The PBGC has not instituted proceedings to terminate any Pension Plan or ERISA Affiliate Plan and, to Metropolitan's knowledge, no condition exists that presents a material risk that such proceedings will be instituted. To the knowledge of CardinalMetropolitan, there is no pending investigation or enforcement action by the PBGC, the DOL Department of Labor or IRS or any other governmental agency with respect to any Compensation and Benefit Plan. Under each Pension Plan and ERISA Affiliate Plan that is a "defined benefit plan" within the meaning of ERISA Section 3(35), as of the date of the most recent actuarial valuation performed prior to the date of this Agreement, the actuarially determined present value of all "benefit liabilities", within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in such actuarial valuation of such Pension Plan or ERISA Affiliate Plan), did not exceed the then current value of the assets of such Pension Plan or ERISA Affiliate Plan and since such date there has been neither an adverse change in the financial condition of such Pension Plan or ERISA Affiliate Plan nor any amendment or other change to such Pension Plan or ERISA Affiliate Plan that would increase the amount of benefits thereunder that reasonably could be expected to change such result.
(iviii) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party ERISA Affiliate Plan have been timely made in cash or have been reflected on Cardinal’s financial statementsMetropolitan's Financial Statements (as defined in Section 5.03(q)(i) below) as of December 31, 2001. Neither any Pension Plan nor any ERISA Affiliate Plan has an "accumulated funding deficiency" (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA and all required payments to the PBGC with respect to each Pension Plan or ERISA Affiliate Plan have been made on or before their due dates. None of CardinalMetropolitan, any of its Subsidiaries or nor any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan or to any ERISA Affiliate Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(viv) Neither Cardinal Metropolitan nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or other retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there . There has been no communication to Employees by Cardinal Metropolitan or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or other retiree death or other benefits on a permanent basis.
(viv) Cardinal Metropolitan and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(viivi) With respect to each Compensation and Benefit Plan, if applicable, Cardinal Metropolitan has provided or made available to UnitedSky, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC within the past year (other than for minimum premium payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed within the past year with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiivii) Except as set forth disclosed on Section 6.03(m)(viii5.03(m)(viii) of Cardinal’s Metropolitan's Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ixviii) Neither Cardinal Metropolitan nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(xix) Except as set forth disclosed on Section 6.03(m)(x5.03(m)(x) of Cardinal’s Metropolitan's Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinalnone of Sky, Metropolitan or the Surviving Corporation, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “"excess parachute payment” " to an individual who is a “"disqualified individual” " (as such terms are defined in Section 280G of the Code)) of Metropolitan on a consolidated basis, without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Sky Financial Group Inc), Merger Agreement (Sky Financial Group Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth 4.13.1. GLB DISCLOSURE SCHEDULE 4.13.1 includes a complete and accurate 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 (including paid time off policies and other benefit policies and procedures), fringe benefit plans, survivor life insuranceemployment, split dollar or other life insurance benefit plan, employment or severance and change in control agreements and all similar other material benefit practices, policies and arrangements maintained by GLB or any GLB Subsidiary in which any current employee or former employee (the “Employees”)employee, current consultant or former consultant (the “Consultants”) or current director or former director (the “Directors”) of Cardinal GLB or any of its Subsidiaries GLB Subsidiary participates or to which any such Employeesemployee, Consultants consultant or Directors are director is a party or is otherwise entitled to receive benefits (the “GLB Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Scheduleset forth in GLB DISCLOSURE SCHEDULE 4.13.1, neither Cardinal GLB nor any of its Subsidiaries has any commitment to create any additional GLB Compensation and Benefit Plan or to modify materially modify, change or change renew any existing GLB Compensation and Benefit PlanPlan (any modification or change that increases the cost of such plans would be deemed material), except as required to maintain the qualified status thereof, GLB has made available to FNFG true and correct copies of the GLB Compensation and Benefit Plans.
(ii) Each 4.13.2. To the Knowledge of GLB and except as disclosed in GLB DISCLOSURE SCHEDULE 4.13.2, each GLB Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or COBRA, the Health Insurance Portability and Accountability Act (“HIPAA”) 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 Act, COBRA and HIPAA and any other applicable law have been timely mademade or any interest, fines, penalties or other impositions for late filings have been paid in full. Each GLB Compensation and Benefit Plan that which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan Code, is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory lettera “Favorable Letter” within the meaning of Rev. Proc. 2006-27 Section 5.01, and Cardinal GLB is not aware of any circumstances that could adversely affect such qualification or that which are reasonably likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination lettersuch Favorable Letter. There is no material pending or, to the knowledge Knowledge of CardinalGLB, threatened legal action, suit or claim relating to any of the GLB Compensation and Benefit Plans (other than routine claims for benefits). Neither Cardinal GLB nor any of its Subsidiaries GLB Subsidiary has engaged in a transaction, or omitted to take any action, with respect to any GLB Compensation and Benefit Plan that would reasonably be expected to subject Cardinal GLB or any of its Subsidiaries GLB Subsidiary to a material an unpaid tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or 4.13.3. GLB does not maintain any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISAdefined benefit pension plan. To the knowledge Knowledge of CardinalGLB, and except as set forth in GLB DISCLOSURE SCHEDULE 4.13.3, there is no pending investigation or enforcement action by the PBGC, the DOL any Governmental Entity or IRS or any other governmental agency Bank Regulator with respect to any GLB Compensation and Benefit Plan, or any plan maintained by any entity which is considered one employer with GLB under Section 4001(b)(1) of ERISA or Code Section 414 (“ERISA Affiliate”)(such plan being referred to as an “ERISA Affiliate Plan”). Neither GLB, its Subsidiaries, nor any ERISA Affiliate has contributed to any “multiemployer plan,” as defined in Section 3(37) of ERISA.
(iv) All 4.13.4. Except as set forth in GLB DISCLOSURE SCHEDULE 4.13.4, all material contributions required to be made under the terms of any GLB Compensation and Benefit Plan or ERISA Affiliate Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal GLB or any of its Subsidiaries GLB Subsidiary is a party or a sponsor have been timely made or have been reflected made, and all contributions and funding obligations are accrued on CardinalGLB’s consolidated financial statementsstatements to the extent required by GAAP. None of Cardinal, any of GLB and its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be have expensed and accrued as a liability the present value of future benefits under each applicable GLB Compensation and Benefit Plan for financial reporting purposes as required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAby GAAP.
(v) Neither Cardinal 4.13.5. Except as set forth in GLB DISCLOSURE SCHEDULE 4.13.5(a), neither GLB nor any of its Subsidiaries GLB Subsidiary has any obligations to provide retiree health and health, life insurance, retiree long-term care insurance disability insurance, or other retiree death or other benefits under any GLB Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the CodeCOBRA or other applicable law. Except as set forth in GLB DISCLOSURE SCHEDULE 4.13.5(b), and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees employees by Cardinal GLB or any of its Subsidiaries GLB Subsidiary that would reasonably be expected to promise or guarantee such Employees employees retiree health health, life insurance, disability insurance, or life insurance or other retiree death or other benefits on a permanent basisbenefits.
(vi) Cardinal 4.13.6. Except as set forth in GLB DISCLOSURE SCHEDULE 4.13.6, GLB and its Subsidiaries do not maintain any GLB Compensation and Benefit Plans covering foreign Employeesemployees who are not United States residents.
(vii) 4.13.7. With respect to each GLB Compensation and Benefit Plan, if applicable, Cardinal GLB has provided or made available to United, true and complete FNFG copies of existingof: (A) Compensation and Benefit Plan documents and amendments thereto; (B) any trust instruments and insurance contracts; (CB) two the three most recent Forms 5500 filed with the IRS; (DC) the three most recent actuarial report reports and financial statementstatements; (ED) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (GE) most recent determination or opinion letter Favorable Letter issued by the IRS; (HF) any Form 5310 or Form 5330 filed with the IRSIRS within the last three years; and (IG) the most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) 4.13.8. Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Scheduledisclosed in GLB DISCLOSURE SCHEDULE 4.13.8, the consummation of the transactions contemplated by this Agreement would Merger will not, directly or indirectly (including, without limitation, as a result of any termination of employment or service at any time prior to or following the Effective Time) reasonably be expected to (A) entitle any Employeeemployee, Consultant consultant or Director director to any payment or benefit (including severance pay pay, change in control benefit, or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any GLB Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any GLB Compensation and Benefit Plan.
(ix) Neither Cardinal 4.13.9. Except as disclosed in GLB DISCLOSURE SCHEDULE 4.13.9, neither GLB nor any of its Subsidiaries GLB Subsidiary maintains any compensation plans, programs or arrangements the payments under which would not any payment is reasonably be expected likely to be deductible become non-deductible, in whole or in part, for tax reporting purposes as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) 4.13.10. To the Knowledge of Cardinal’s Disclosure ScheduleGLB, as a resultthe consummation of the Mergers and the Bank Merger will not, directly or indirectly, of the transactions contemplated by this Agreement indirectly (including, including without limitation, as a result of any termination of employment or service at any time prior to or following the Effective Time), neither United nor Cardinalentitle any current or former employee, director or independent contractor of GLB or any of their respective Subsidiaries will be obligated GLB Subsidiary to make any actual or deemed payment (or benefit) which could constitute a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are term is defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed except as set forth in the futureGLB DISCLOSURE SCHEDULE 4.13.10.
(xi) As of the Effective Date4.13.11. Except as disclosed in GLB DISCLOSURE SCHEDULE 4.13.11, there are no supplemental employment retirement plans (eachstock appreciation or similar rights, earned dividends or dividend equivalents, or shares of restricted stock, outstanding under any of the GLB Compensation and Benefit Plans or otherwise as of the date hereof and none will be granted, awarded, or credited after the date hereof.
4.13.12. GLB DISCLOSURE SCHEDULE 4.13.12(a) sets forth, as of the payroll date immediately preceding the date of this Agreement, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A list of the Code that are subject to claims full names of creditorsall officers, and except as set forth on Section 6.03(m)(xi) employees whose annual rate of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on salary is $50,000 or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectlygreater, of the transactions contemplated by this Agreement (includingGBSB or GLB, without limitation, as a result their title and rate of any termination of employment prior to or following the Effective Time)salary, and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan their date of Cardinal is listed on Section 6.03(m)(xihire. GLB DISCLOSURE SCHEDULE 4.13.12(b) of Cardinal’s Disclosure Schedule.
(xii) Except as set sets forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made changes to any agreement, taken any action, or omitted to take any action, with respect to or as part of any GLB Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to taxsince December 31, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code2006.
Appears in 2 contracts
Samples: Merger Agreement (Great Lakes Bancorp, Inc.), Merger Agreement (First Niagara Financial Group Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i4.14(a) of Cardinal’s the Parent Disclosure Schedule, Cardinal has set Letter sets forth a true and complete and accurate list of all existing bonus"employee pension benefit plans" (as defined in Section 3(2) of ERISA) under which Parent or any Parent Subsidiary has any material liability (sometimes referred to individually as a "Parent Pension Plan" and collectively as the "Parent Pension Plans"), incentiveall "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) under which Parent or any Parent Subsidiary has any material liability (sometimes referred to individually as a "Parent Welfare Plan" and collectively as the "Parent Welfare Plans"), deferred and all vacation, severance, termination, change in control, employment, incentive compensation, pension, retirement, profit-profit sharing, thriftstock option, savings, employee stock ownership, stock bonusfringe benefit, stock purchase, restricted stock ownership, phantom stock, stock option, severance, welfare deferred compensation plans or agreements and other employee fringe benefit plansplans or arrangements maintained, survivor life insurance, split dollar contributed to or other life insurance required to be maintained or contributed to by Parent or any Parent Subsidiary for the benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which of any current present or former employee officers, employees, directors or independent contractors of Parent or any Parent Subsidiary and under which Parent or any Parent Subsidiary has any actual or contingent material liabilities (each of the “Employees”foregoing being referred to with the Parent Pension Plans and the Parent Welfare Plans, individually as a "Parent Benefit Plan" and collectively as the "Parent Benefit Plans").
(b) Parent has made available to the Company true and complete copies of (i) each Parent Benefit Plan (or, in the case of any unwritten Parent Benefit Plan, a summary of the material provisions of such plan), current or former consultant (ii) the “Consultants”) or current or former director (three most recent annual reports on Form 5500 filed with the “Directors”) of Cardinal or any of its Subsidiaries participates or Internal Revenue Service with respect to which each Parent Benefit Plan to the extent any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as report was required by applicable Law, (iii) the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and most recent summary plan description for each Parent Benefit Plan for which such a summary plan description is required by applicable Law and (iv) each currently effective trust agreement and insurance or annuity contract relating to modify or change any existing Compensation and Parent Benefit Plan.
(iic) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect or as set forth in Section 4.14(c) of the Parent Disclosure Letter:
(i) Each Compensation and Parent Benefit Plan has been operated and administered in all material respects in accordance with its terms terms, and Parent and each of the Parent Subsidiaries and all of the Parent Benefit Plans are in compliance with the applicable law, including, but not limited to, provisions of ERISA, the Code, Code and other applicable Laws as to the Securities Act, Parent Benefit Plans. The fair market value of the Exchange Act, assets of each of the Age Discrimination in Employment Act, Parent Pension Plans as of the most recent annual valuation date for such plan equaled or any regulations or rules promulgated thereunderexceeded on a termination basis the then present value of the liabilities of such plan, and all filingscontributions required under each Parent Benefit Plan have been made in full on a timely and proper basis.
(ii) With respect to the Parent Benefit Plans, disclosures individually and notices required by in the aggregate, no event has occurred and, to the knowledge of Parent, there exists no condition or set of circumstances, including claims, audits and investigations, in connection with which Parent or any of the Parent Subsidiaries could be subject to any liability under ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and Code or any other applicable law have been timely made. Law, except for making contributions, or the payment of claims or the payment of PBGC premiums in the ordinary course of the operation of any such Parent Benefit Plans.
(iii) Each Compensation and Benefit Parent Pension Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under comply with the provisions of Section 401(a) of the Code has received been amended to satisfy all the currently applicable requirements for such a favorable plan, and each such plan is the subject of a determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service to the effect that such Parent Pension Plan as so amended satisfies all such requirements (“IRS”other than the requirements of the Economic Growth and Tax Relief Reconciliation Act of 2001) or and is qualified and exempt from income taxes under Sections 401(a) and 501(a), respectively, of the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterCode, and Cardinal is not aware of any circumstances that could adversely affect no such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending orhas been revoked and, to the knowledge of CardinalParent, threatened legal action, suit or claim relating revocation has not been threatened. Parent has made available to the Compensation and Benefit Plans other than routine claims for benefitsCompany a copy of each such favorable determination letter. Neither Cardinal Parent nor any of its Subsidiaries Parent Subsidiary has engaged in a transactionmaintained, contributed to or been obligated to maintain or contribute to, or omitted to take has any actionactual or contingent liability under, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) benefit plan that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or Section 412 of the Code or is or was otherwise a multiemployer defined benefit pension plan under Subtitle E of Title IV (as defined in Section 3(35) of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan).
(iv) All contributions required To the knowledge of Parent, there are no oral understandings, agreements or undertakings binding on Parent with any person that would (pursuant to be made under the terms of any Compensation and such understandings, agreements or undertakings) result in any material liabilities if any Parent Benefit Plan was amended or terminated on or at any employee benefit arrangements under time after the Effective Time or that would prevent any collective bargaining agreement unilateral action by Parent to which Cardinal effect such amendment or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAtermination.
(v) Neither Cardinal nor No Parent Welfare Plan provides benefits to, or on behalf of, any former employee after the termination of its Subsidiaries has any obligations to provide retiree health and life insuranceemployment except (A) where the full cost of such benefit is borne entirely by the former employee (or his eligible dependents or beneficiaries), retiree long-term care insurance (B) where plan benefits are payable through a trust, the fair market value of the assets of which equal or retiree death exceed the present value of the liabilities of such plan or other benefits under any Compensation and Benefit Plan, other than benefits mandated (C) where the benefit is required by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal Neither the execution and its Subsidiaries do not maintain delivery of this Agreement, nor the consummation of any Compensation and transaction contemplated by this Agreement (alone or in conjunction with a termination of employment) will (A) trigger any funding (through a grantor trust or otherwise) of any compensation or benefits or (B) result in any violation or breach of, or a default (with or without notice or lapse of time or both) under any Parent Benefit Plans covering foreign EmployeesPlan.
(vii) With respect Neither Parent nor any Parent Subsidiary has given notice to each Compensation and Benefit Planany participant, if applicablebeneficiary, Cardinal has provided fiduciary or made available to United, true and complete copies administrator of existing: (A) Compensation and any Parent Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with or to any government or agency of a government to the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination effect that Parent or opinion letter issued by the IRS; (H) any Form 5310 such Parent Subsidiary intends to terminate or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)withdraw from such plan.
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated Each individual who is classified by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, Parent or any of their respective the Parent Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to "employee" or as part of any Compensation and Benefit Plan that an "independent contractor" is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to properly so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codeclassified.
Appears in 2 contracts
Samples: Merger Agreement (Caremark Rx Inc), Merger Agreement (Advancepcs)
Employee Benefit Plans. (ia) On Section 6.03(m)(i4.12(a) of Cardinal’s the Parent Disclosure Schedule, Cardinal has set Letter sets forth a true, complete and accurate correct list of each material “employee benefit plan” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), and any other material plan, policy, program, practice, agreement, understanding or arrangement (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 Parent or any ERISA Affiliate, which are now maintained, sponsored or contributed to by Parent or any ERISA Affiliate, or under which Parent or any ERISA Affiliate has any material obligation or liability, whether actual or contingent, including all existing incentive, bonus, incentive, deferred compensation, pensionvacation, retirementholiday, profit-sharingcafeteria, thriftmedical, savings, employee stock ownership, stock bonusdisability, stock purchase, stock option, stock appreciation, phantom stock, restricted stock, restricted stock optionunit, severancestock-based compensation, welfare and fringe benefit planschange-in-control, survivor life insuranceretention, split dollar or other life insurance benefit planemployment, employment consulting, personnel or severance agreements and all similar policies, programs, practices, policies and Contracts or arrangements in which any (each, a “Parent Benefit Plan”). For purposes of this Agreement, the term “Parent Foreign Benefit Plans” shall mean those Parent Benefit Plans maintained, sponsored or contributed to primarily for the benefit of current or former employee (employees of Parent or any ERISA Affiliate who are or were regularly employed outside the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”United States. Section 4.12(a) of Cardinal or any the Parent Disclosure Letter sets forth a true, complete and correct list of its Subsidiaries participates or each Parent Foreign Benefit Plan to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”)Company. Except as required by the terms For purposes of this Agreement Section 4.12 and Section 4.11, “ERISA Affiliate” shall mean any entity (whether or not incorporated) that, together with any other entity, is considered under common control and treated as Previously Disclosed on one employer under Section 6.03(m)(i414(b) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries the Code. Parent has any no express or implied commitment to create any additional Compensation and Benefit Plan terminate or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Parent Benefit Plan, other than benefits mandated with respect to a termination, modification or change required by Section 4980B of this Agreement, ERISA or the CodeCode or which would not, and each such Compensation and Benefit Plan may be amended individually or terminated without incurring liability thereunderin the aggregate, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on have a permanent basisParent Material Adverse Effect.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Medytox Solutions, Inc.), Merger Agreement (CollabRx, Inc.)
Employee Benefit Plans. (iSchedule 3(p) On Section 6.03(m)(i) contains a true and complete list and description of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonus, incentive, deferred compensation, each pension, retirement, severance, welfare, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severancevacation, welfare and fringe deferred compensation, bonus or other incentive plan, or other employee benefit program, arrangement, agreement or understanding, or medical, vision, dental or other health plan, or life insurance or disability plan, retiree medical or life insurance plan or any other employee benefit plans, survivor life insuranceincluding, split dollar or other life insurance without limitation, any “employee benefit plan” (as defined in Section 3(3) of ERISA), employment to which HYDRA contributes or severance agreements is a party or by which it is bound or under which it may have liability and all similar practices, policies and arrangements in under which any current employees or former employees of HYDRA (or their beneficiaries) are eligible to participate or derive a benefit. Each employee benefit plan which is a “group health plan” (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”as such term is defined in Section 5000(b)(i) of Cardinal or any the Code) satisfies the applicable requirements of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (Section 4980B of the “Compensation and Benefit Plans”)Code. Except as required by the terms of this Agreement described on Schedule 3(p), HYDRA has no formal plan or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedulecommitment, neither Cardinal nor any of its Subsidiaries has any commitment whether legally binding or not, to create any additional Compensation and Benefit Plan plan, practice or to agreement or modify or change any existing Compensation plan, practice or agreement that would affect any of its employees or terminated employees. Benefits under all employee benefit plans are as represented and Benefit Plan.
(ii) Each Compensation have not been and Benefit Plan has will not be increased subsequent to the date copies of such plans have been operated and administered in all material respects in accordance with its terms and with applicable law, including, but provided. HYDRA does not limited contribute to or have any obligation to contribute to, ERISAhas not at any time contributed to or had an obligation to contribute to, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, sponsor or any regulations or rules promulgated thereundermaintain, and all filingshas not at any time sponsored or maintained, 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. Each Compensation and Benefit Plan that is an a “employee pension benefit multi-employer plan” (within the meaning of Section 3(23(37) of ERISA ERISA) for the benefit of employees or former employees of HYDRA. HYDRA has, in all material respects, performed all obligations, whether arising by operation of law, contract, or past custom, required to be performed under or in connection with the employee benefit plans disclosed on Schedule 3(p) (individually, a “Pension HYDRA Employee Benefit Plan” and, collectively, the “HYDRA Employees Benefit Plans”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter), and Cardinal is not aware HYDRA has no knowledge of any circumstances that could adversely affect such qualification default or that are likely to result in the revocation of violation by any existing favorable determination letter or in not receiving a favorable determination letterother party with respect thereto. There is are no material pending orActions, to the knowledge of Cardinal, threatened legal action, suit suits or claim relating to the Compensation and Benefit Plans claims (other than routine claims for benefits. Neither Cardinal nor ) pending, or, to HYDRA’s knowledge, threatened, against any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and HYDRA Employee Benefit Plan or against the assets funding any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statementsHYDRA Employee Benefit Plan. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security HYDRA neither maintains nor contributes to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individualemployee welfare benefit” (as such terms are term is defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi3(i) of Cardinal’s Disclosure Schedule, no such grantor trusts are required ERISA) plan which provides any benefits to be established on retirees or after the Effective Time by the successor to Cardinal or any former employees of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure ScheduleHYDRA.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Ivoice, Inc /Nj), Agreement and Plan of Merger (Ivoice, Inc /Nj)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure ScheduleWithin 20 business days after the date hereof, Cardinal has set forth Cameron will provide Schlumberger with a complete and accurate list of all existing Cameron Benefit Plans and make available to Schlumberger a true and correct copy of each Cameron Benefit Plan. The term “Cameron Benefit Plans” means all material employee benefit plans and other material benefit arrangements, including all “employee benefit plans” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not U.S.-based plans, and all other material employee benefit, bonus, incentive, deferred compensation, pension, retirement, profitstock option (or other equity-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock optionbased), severance, employment, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, survivor life insurancepractices or agreements, split dollar whether or other life insurance benefit plannot subject to ERISA or U.S.-based and whether written or oral, employment sponsored, maintained or severance agreements and all similar practicescontributed to or required to be contributed to by Cameron or any of its Subsidiaries, policies and arrangements in to which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Cameron or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are is a party (or is required to provide benefits under Applicable Law. As of the “Compensation date hereof, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Cameron Material Adverse Effect, there is no unsatisfied liability associated with any terminated Cameron Benefit Plans”)Plan. Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment With respect to create any additional Compensation and each Cameron U.S. Benefit Plan or (as defined below), within 20 business days after the date hereof, Cameron will make available to modify or change any existing Compensation Schlumberger a true and correct copy of (i) the most recent annual report (Form 5500) filed with the applicable Governmental Entity (with respect to Cameron U.S. Benefit Plan.
Plans for which Form 5500’s are filed), (ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and each such Cameron U.S. Benefit Plan that is an has been reduced to writing and all amendments thereto, (iii) each trust agreement, insurance contract or administration agreement relating to each such Cameron U.S. Benefit Plan, (iv) the most recent summary plan description or other written explanation of each Cameron U.S. Benefit Plan provided to participants, (vi) the most recent actuarial report or valuation relating to a Cameron U.S. Benefit Plan subject to Title IV of ERISA, (vii) the most recent determination letter or opinion letter, if any, issued by the Internal Revenue Service (“employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension PlanIRS”) and that is with respect to any Cameron U.S. Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied Code, (viii) any request for a favorable determination letter in compliance currently pending before the IRS, and (ix) all material correspondence with the Code (including a determination that IRS, the related trust under such Compensation and U.S. Department of Labor, or Pension Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim Guaranty Corporation relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, outstanding controversy or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, controversy that has resulted, or would reasonably be expected to result, been resolved in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAprevious year.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Cameron International Corp), Merger Agreement (Schlumberger LTD /Nv/)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure ScheduleNeither Grand Parent, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which Borrower nor ---------------------- any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.ERISA Affiliate shall
(iia) Each Compensation and Benefit Plan has been operated and administered engage in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” "prohibited transaction" within the meaning of Section 3(2(S) 406 of ERISA or (a “Pension Plan”S) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 IRC which could result in a material liability for the Borrower;
(b) permit any Guaranteed Pension Plan to incur an "accumulated funding deficiency", as such term is defined in (S) 302 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any whether or not such transaction expired as of the date hereof.deficiency is or may be waived;
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject fail to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect contribute to any Compensation and Benefit Plan.
(iv) All contributions required Guaranteed Pension Plan to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has providedan extent which, or would reasonably be expected to be required to provide, security to terminate any Guaranteed Pension Plan pursuant to Section 401(a)(29) of the Codein a manner which, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, could result in the imposition of a lien under Section 412(n) or encumbrance on the assets of the Code or Borrower pursuant to (S) 302(f) or (S) 4068 of ERISA.;
(vd) Neither Cardinal nor permit or take any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that action which would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or aggregate benefit liabilities (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A (S) 4001 of ERISA) of all Guaranteed Pension Plans exceeding the value of the Code that are subject to claims aggregate assets of creditorssuch Plans, disregarding for this purpose the benefit liabilities and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result assets of any termination such Plan with assets in excess of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.benefit liabilities;
(xiie) Except as set forth on Section 6.03(m)(xiifail to make when due any required contributions to a Multiemployer Plan;
(f) withdraw (completely or partially) from any Multiemployer Plan where such withdrawal is likely to result in a material liability of Cardinal’s Disclosure ScheduleGrand Parent or an ERISA Affiliate;
(g) terminate or institute proceedings to terminate, neither Cardinal nor any Guaranteed Pension Plan, where such termination is likely to result in a material liability of its Subsidiaries has made Grand Parent or an ERISA Affiliate;
(h) make any agreement, taken amendment to any action, or omitted to take any action, Guaranteed Pension Plan with respect to which security is required under (S) 307 of ERISA; or
(i) fail to give any and all notices and make all disclosures and governmental filings required under ERISA or as part of any Compensation and Benefit Plan that the IRC where such failure is likely to result in material liability to Grand Parent or an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeERISA Affiliate.
Appears in 2 contracts
Samples: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) The CRA Disclosure Letter lists each of Cardinal’s Disclosure Schedulethe following which is sponsored, Cardinal has set forth a complete and accurate list maintained, or contributed to by CRA or any CRA Subsidiary for the benefit of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employees, officers, or directors of CRA or any CRA Subsidiary or for which CRA or any CRA Subsidiary has any liability or contingent liability:
(i) each "employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”benefit plan," as such term is defined in Section 3(3) of Cardinal or any the Employee Retirement Income Security Act of its Subsidiaries participates or to which any such Employees1974, Consultants or Directors are as amended ("ERISA") (each a party (the “Compensation and Benefit Plans”"CRA ERISA Plan"). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.;
(ii) Each Compensation each employment, severance, termination, retention, stay-with-bonus, or change-of-control agreement or understanding (each a "CRA Employment Agreement"), except that the CRA Disclosure Letter only lists CRA Employment Agreements with CRA's executive officers; and
(iii) each personnel policy, stock option or purchase plan, collective bargaining agreement, bonus plan or arrangement, incentive award plan or arrangement, vacation policy, deferred compensation agreement or arrangement, executive compensation or supplemental income arrangement, and each other employee benefit plan, agreement, arrangement, program, practice or understanding (each, a "CRA Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable lawProgram"), including, but not limited to, ERISAexcept that the CRA Disclosure Letter only lists CRA Benefit Programs that are for the exclusive benefit of one or more of CRA's executive officers. The CRA ERISA Plans, the CodeCRA Employment Agreements and the CRA Benefit Programs are sometimes collectively hereinafter referred to as the "CRA Plans".
(b) True, correct and complete copies of each of the CRA ERISA Plans, and related trusts, if applicable, including all amendments thereto, have been furnished to OSI. There has also been furnished to OSI, with respect to each CRA ERISA Plan required to file such report and description, the Securities Actmost recent report on Form 5500 and the summary plan description. True, correct and complete copies or descriptions of all CRA Benefit Programs and Employment Agreements that are for the Exchange Act, the Age Discrimination in Employment Actexclusive benefit of, or any regulations or rules promulgated thereunderare with, and all 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 CRA's executive officers have also been timely madefurnished to OSI. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within of the meaning of Section 3(2) of CRA ERISA (a “Pension Plan”) and that is Plans intended to be qualified under Section 401(a) of the Code satisfies the requirements of such section, and has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service regarding such qualified status (“IRS”a copy of which has been provided to OSI) or and has not, since receipt of the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a most favorable determination letter. There is no material pending , been amended or, to the knowledge of CardinalCRA, threatened legal actionoperated in a way which would adversely affect such qualified status.
(c) Each of the CRA Plans is in compliance in all material respects with all applicable requirements of law, suit or claim including ERISA and the Code, and all reports and disclosures relating to the Compensation CRA Plans required to be filed with or furnished to governmental agencies, CRA Plan participants or CRA Plan beneficiaries have been filed or furnished in accordance with applicable law (except where the failure to file or furnish would not have a CRA Material Adverse Effect), and Benefit Plans there are no actions, suits or claims pending (other than routine claims for benefits. Neither Cardinal nor ) or, to the knowledge of CRA, threatened against, or with respect to, any of its Subsidiaries has engaged in a transaction, the CRA Plans or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereoftheir assets.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(ivd) All contributions required to be made under to the CRA Plans pursuant to their terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party provisions have been timely made or (except where the failure to make such contributions would not have been reflected on Cardinal’s financial statements. a CRA Material Adverse Effect).
(e) None of Cardinal, any the CRA Plans is a "defined benefit pension plan" within the meaning of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29section 3(35) of ERISA or is a "multiemployer plan" (within the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition meaning of a lien under Section 412(nsection 3(37) of the Code or pursuant ERISA) without regard to whether any such plans are subject to Title IV of ERISA.
(vf) Neither Cardinal nor any None of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal CRA or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain CRA Subsidiary has made any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Planpayments, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be is obligated to make any payments, or is a payment party to an Employee of Cardinal or any of its Subsidiaries agreement that could obligate it to make any payments, that would not be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section deductible by reason of section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries an excise tax under Section 409A section 4999 of the Code or or, except as previously disclosed in writing to pay any reimbursement or other payment to any service providerOSI, as defined under Section 409A that would not be deductible by reason of section 162 of the Code.
(g) Except as disclosed in the CRA Disclosure Letter, respecting any such tax, interest or penalty under Section 409A of the Codeexecution of, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, performance of the transactions contemplated by in this Agreement will not (including, without limitation, as a result either alone or upon the occurrence of any termination additional or subsequent events) constitute an event under any CRA Plan or any trust or loan that will or may result in any payment (whether of employment prior to severance pay or following the Effective Timeotherwise), neither Cardinal nor acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligations to fund benefits with respect to any current or former employee, officer, or director.
(h) Other than coverage mandated by applicable statute, none of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest CRA or any penalty by CRA Subsidiary is under any service provider obligation or liability to provide medical benefits or death benefits (as defined under Section 409A of the Codeincluding through insurance) to Cardinal retirees or to former employees, officers, or directors of CRA or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeCRA Subsidiary.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Occusystems Inc), Agreement and Plan of Reorganization (Cra Managed Care Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth Schedule 3.21 contains a true and complete and accurate list of all existing the schemes ("the Schemes") or agreements for the provision of funding of any relevant benefits (as defined in section 612(1) of the Income and Corporate Taxes Act 1988 ("Taxes Act") but as if the exception contained in that section were omitted) (each a "Pension Scheme") for any of the employees or officers, former employees, or former officers, or their dependants of either Company or any Subsidiary and of any profit sharing, share option, share incentive, bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock optionredundancy, severance, welfare and fringe benefit plansdisability, survivor life insurance, split dollar or other life insurance or medical plans relating to such employees, and Xxxx and the Seller have caused the Companies to deliver to Purchaser (and enclose with Schedule 3.21) true, correct and complete copies of each Scheme, including without limitation, the Trust Deeds and Rules, all explanatory booklets, announcements containing particulars of benefits and entitlements under each such Scheme and in relation to each Pension Scheme, latest annual reports and accounts, latest actuarial reports and subsequent actuarial advice and details of its present trustees.
(b) Other than the Schemes listed in Schedule 3.21, no Company or Subsidiary operates and no proposal has been announced to establish any retirement death or disability benefits scheme in relation to its employees or officers or the dependants of such persons and no Company or Subsidiary is paying or is under any moral responsibility or legal obligation to pay or provide any private medical insurance or any pension retirement or disablement or sickness benefit plangratuity, disability benefit, benefit in connection with loss of office or employment or severance agreements and all any similar practicesbenefit, policies and arrangements whether by way of a lump sum or otherwise to or in which respect of its employees, officers or in respect of any current former officer or former employee or a dependant of any such person.
(c) All contributions, any administrative charges and all actuarial, consultancy, legal and other fees, charges or expenses due under the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Schemes which have become payable by either Company or any of Subsidiary or by its Subsidiaries participates trustees or to which by any such Employees, Consultants employee in relation to the Schemes have been duly and promptly paid and no services have been rendered in respect of it where such an account or Directors invoice has not been rendered.
(d) Each Pension Scheme is an exempt approved scheme within the meaning of Chapter I of Part XIV of the Taxes Act. There is no reason why such exempt approval may be withdrawn.
(e) All members of the Pension Schemes employed by either Company or any Subsidiary are a party listed in Schedule 3.21 together with the current membership category or level applicable.
(f) All employees of the “Compensation Companies and Benefit Plans”). Except as required by the terms Subsidiaries who are eligible for membership in the Pension Schemes have been offered membership and the Companies or the trustees have an accurate membership and benefits record.
(g) All lump sum death in service benefits which may be payable under it are fully insured and all premiums due up to the date of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Planhave been paid.
(iih) Each Compensation and Benefit Plan has been operated and administered The Pension Schemes have, in all material respects respects, at all times been administered in accordance with its terms their governing trusts powers and provisions and the documents constituting and governing them (including all notices and announcements and explanatory literature) and in accordance with applicable law, includingexcept where a failure to so administer the Pension Schemes has not had and will not have a Material Adverse Effect.
(i) So far as the Warrantors are aware, but not limited tohaving made suitable inquiry, ERISAthere are no actions, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, suits or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA claims (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal ) outstanding, pending or threatened by (or in respect of) the employees against the trustees or the Companies or any Subsidiaries.
(j) So far as the Warrantors are aware, having made suitable inquiry, no report has been made to the Occupational Pensions Regulatory Authority under the provisions of the Pensions Xxx 0000 by the Actuary or Auditor to the Pension Schemes or any other party, and to the knowledge of the Warrantors neither of the Companies, any Subsidiary nor any trustee of any Pension Scheme is subject to any penalty levied by the Occupational Pensions Regulatory Authority.
(k) Details of any current or former employees (whether living or deceased) of either Company or any Subsidiary who have been excluded or prevented from participating in any Pension Scheme or arrangement (including without limitation for the provision of death benefits) which either Company or any Subsidiary has sponsored or in which any such employees have participated at any time (including without limitation the Pension Schemes) on the grounds of part-time employment, have been disclosed.
(l) In relation to each of the pension schemes which are money purchase schemes all contributions which are payable by the Companies and Subsidiaries in accordance with its provisions to secure or provide the benefits for and in respect of its members (including pensioners, deferred pensioners and any other person prospectively or casting entry entitled to benefit under it) and all contributions due from its members have been duly made and the Companies and Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation have fulfilled other obligations under it; and Benefit Plan that would reasonably the benefits which are prospectively and contingently payable under it are solely such as can be expected to subject Cardinal or any provided by the funds available for each of its Subsidiaries members.
(m) In relation to a material tax or penalty imposed by either Section 4975 each of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 Pension Schemes which are final salary schemes:
(i) the Warrantors have no reason to believe that the report of the Code last actuarial valuation and any subsequent actuarial advice was inaccurate or incomplete when given;
(ii) since the date of the report of the last actuarial valuation and any subsequent actuarial advice the Companies and Subsidiaries and each of the pensionable employees who are obliged to do so have paid contributions to each of the final salary schemes at the rates recommended by the actuary in such valuation or advice and there are no such contributions that the taxable period of any such transaction expired have fallen due but are unpaid as of the date hereof.Closing Date; and
(iii) No Compensation no augmentations to existing benefits have been made under it and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Planadditional benefits have been granted.
(ivn) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With In respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit PlansPension Schemes which are winding up, discontinued or terminated, neither the Companies nor any actions taken Subsidiaries have any liability to make any further payments or omitted thereunder, violate Section 409A of the Codecontributions to such schemes whatsoever.
Appears in 1 contract
Employee Benefit Plans. (ia) On Except as set forth on Section 6.03(m)(i3.22(a) of Cardinal’s the Disclosure Schedule, Cardinal has set forth a complete and accurate list neither Company nor any ERISA Affiliate maintains or contributes to, nor have they ever maintained or contributed to, any "employee pension benefit plans" as defined in Section 3(2) of all existing ERISA, "welfare benefit plans" as defined in Section 3(l) of ERISA, or stock bonus, stock option, restricted stock, stock appreciation right, stock purchase, bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit or vacation plans, survivor life insurance, split dollar or any other life insurance employee benefit plan, employment program, policy or severance agreements and all similar practices, policies and arrangements in which any current arrangement maintained or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal contributed to by Company or any of its Subsidiaries participates ERISA Affiliates or to which Company or any such Employeesof its ERISA Affiliates, Consultants contributes or Directors are a party is obligated to make payments thereunder or otherwise may have any liability (collectively, the “Compensation and "Employee Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i") of Cardinal’s Disclosure Schedule, neither Cardinal .
(b) Neither Company nor any of its Subsidiaries respective ERISA Affiliates have ever maintained or contributed to any pension plan subject to Title IV of ERISA or Section 412 of the Code or 302 of ERISA. Neither Company nor any of their respective ERISA Affiliates has any commitment liability (including any contingent liability under Section 4204 of ERISA) with respect to create any additional Compensation multiemployer plan defined as such in Section 3(37) of ERISA to which contributions are or have been made by Company or any of its ERISA Affiliates or as to which Company or any of its ERISA Affiliates may have liability and Benefit that is covered by Title IV of ERISA ("Multiemployer Plan") covering employees (or former employees) employed in the United States. Neither Company nor any ERISA Affiliate has incurred any liability or taken any action that could reasonably be expected to cause it to incur any liability (i) on account of a partial or complete withdrawal (within the meaning of Section 4205 and 4203 of ERISA, respectively) with respect to any Multiemployer Plan or (ii) on account of unpaid contributions to modify or change any existing Compensation and Benefit such Multiemployer Plan.
(iic) All contributions to, and payments from, the Employee Benefit Plans which are required to have been made by Company, or any of its respective ERISA Affiliates with respect to any period ending on or before the Closing Date, in accordance with the Employee Benefit Plans, have been timely made. Company has performed all obligations required to be performed by it under, is not in violation of, and has no Knowledge of any other party to any Employee Benefit Plan. Each Compensation and Employee Benefit Plan has been operated established and administered maintained in all material respects in accordance with and in compliance with its terms and with all applicable lawlaws including ERISA and the Code.
(d) Except as disclosed on Section 3.22 of the Disclosure Schedule hereof, including, but not limited neither Company nor any of its respective ERISA Affiliates maintain or contribute to, ERISAnor have they ever maintained or contributed to, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) plan subject to Title IV of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) or Sections 412 of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with 302 of ERISA.
(e) The Employee Benefit Plans intended to qualify under Section 401 of the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from have been determined by the Internal Revenue Service (“IRS”) to be so qualified and, to the Knowledge of the Company, no event has occurred and no condition exists with respect to the form or operation of such Employee Benefit Plans which would cause the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject loss of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in exemption or the revocation imposition of any existing favorable determination letter material liability, penalty or in not receiving a favorable determination letter. There is tax under ERISA or the Code.
(f) To the Knowledge of the Company, there are no material investigations pending by any Authority involving any Employee Benefit Plan or, to the knowledge Knowledge of Cardinalthe Company, any Multiemployer Plan. There are no pending or threatened legal action, suit or claim relating to the Compensation and Benefit Plans claims (other than routine claims for benefits. ), suits or proceedings against any Employee Benefit Plan, against the assets of any of the trusts under any Employee Benefit Plan or against Company or any ERISA Affiliate or fiduciary of any Employee Benefit Plan with respect to the operation of such plan or asserting any rights or claims to benefits under any Employee Benefit Plan or against the assets of any trust under such plan, nor, to the knowledge of Company, are there any facts which would give rise to any liability.
(g) Neither Cardinal Company nor any of its Subsidiaries employee thereof, nor any trustee, administrator, other fiduciary or any other "party in interest" or "disqualified person" with respect to the Employee Benefit Plan, has ever engaged in a "prohibited transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either " (as such term is defined in Section 4975 of the Code or Section 502 406 of ERISA, assuming for purposes of ) which could result in a tax or penalty on Company under Section 4975 of the Code that the taxable period or Section 502(i) of any such transaction expired as of the date hereofERISA ("Prohibited Transaction").
(iiih) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or Neither Company nor any of its Subsidiaries or employee thereof has ever engaged in any entity Prohibited Transaction with respect to any Multiemployer Plan.
(an “i) Neither Company nor any ERISA Affiliate”) that is considered one employer with Cardinal Affiliate has ever incurred any liability under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or which is or was a multiemployer plan currently outstanding.
(j) Except as disclosed on Section 3.22(j) of the Disclosure Schedule hereof, neither Company nor any of its respective ERISA Affiliates has any liability (including any contingent liability under Subtitle E of Title IV Section 4204 of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency ) with respect to any Compensation and Benefit Plan.
Multiemployer Plan covering employees (ivor former employees) All contributions required to be made under employed in the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statementsUnited States. None of Cardinal, any of its Subsidiaries or Neither Company nor any ERISA Affiliate (x) has provided, incurred any liability or would taken any action that could reasonably be expected to be required cause it to provide, security to incur any Pension Plan pursuant to Section 401(a)(29liability (i) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition on account of a lien under Section 412(n) of the Code partial or pursuant to ERISA.
complete withdrawal (v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart ESection 4205 and 4203 of ERISA, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xirespectively) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to any Multiemployer Plan or as part (ii) on account of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries unpaid contributions to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeMultiemployer Plan.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Global Signal Inc)
Employee Benefit Plans. (ia) On Except as set forth on Schedule 4.34(a), none of the Company Entities maintains, contributes to or has any obligation to contribute to, or has any Liability with respect to, (A) any employee pension benefit plans (as defined in Section 6.03(m)(i3(2) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar ERISA) whether or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee not terminated (the “EmployeesEmployee Pension Plans”), current ; (B) any ongoing or former consultant terminated funded or unfunded employee welfare benefit plans (the “Consultants”) or current or former director (the “Directors”as defined in Section 3(1) of Cardinal ERISA) (“Employee Welfare Plans”); or (C) any plan, policy, program or arrangement which provides nonqualified deferred compensation benefits, bonus or compensation benefits, severance benefits, incentive or compensation benefits, “change of control” benefits, equity-based compensation awards, executive or supplemental income benefits, or any of its Subsidiaries participates other program, plan, policy or to arrangement which any such Employeesprovides retirement, Consultants health, life, disability, accident, vacation, tuition reimbursement or Directors are a party material fringe benefits (the “Compensation and Benefit Other Plans”). Except as required by None of the terms of this Agreement Company Entities nor Commonly Controlled Entities currently participates in or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries contributes to or maintains or has any commitment obligation to create any additional Compensation and Benefit Plan contribute to (or has or reasonably expects to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and incur any other applicable law have been timely made. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, Liability with respect to to), (1) any Compensation and Benefit Employee Pension Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is Section 412 of the Code or was a (2) any multiemployer plan under Subtitle E of Title IV (as defined in Section 3(37) of ERISA. To ) (“Multiemployer Plan”), and none of the knowledge of Cardinal, there is no pending investigation Company Entities nor any Commonly Controlled Entities has incurred or enforcement action by the PBGC, the DOL reasonably expects to incur any current or IRS or any other governmental agency potential withdrawal Liability with respect to any Compensation and Benefit Multiemployer Plan.
. None of the Company Entities maintains or has any obligation to contribute to (ivor any other Liability with respect to) All contributions any funded or unfunded Employee Welfare Plan or Other Plan which provides post retirement health, accident or life insurance benefits to current or former employees, current or former independent contractors, current or future retirees, their spouses, dependents or beneficiaries, other than health benefits required to be made provided to former employees, their spouses and other dependents under COBRA or similar state Law. Any Employee Pension Plan, any Employee Welfare Plan and any Other Plan shall be referred to herein collectively as the terms “Employee Plans.” Solely for purposes of Section 4.34, a “Commonly Controlled Entity” means any Compensation and Benefit Plan entity (whether or any employee benefit arrangements not incorporated) which is under any collective bargaining agreement to which Cardinal or common control with any of its Subsidiaries is a party have been timely made the Company Entities within the meaning of Sections 414(b), (c), (m) or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29o) of the Code; provided, and (y) has taken however, that, such term shall not include any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under entity which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a resulthas, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinalan ownership interest in Seller, or any subsidiary of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of entity which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a resulthas, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedulean ownership interest in Seller.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Memorial Production Partners LP)
Employee Benefit Plans. (ia) On Except as set forth on Schedule 4.34(a), the Company does not maintain, contribute to or have any obligation to contribute to, or have any Liability with respect to, (A) any employee pension benefit plans (as defined in Section 6.03(m)(i3(2) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar ERISA) whether or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee not terminated (the “EmployeesEmployee Pension Plans”), current ; (B) any ongoing or former consultant terminated funded or unfunded employee welfare benefit plans (the “Consultants”) or current or former director (the “Directors”as defined in Section 3(1) of Cardinal ERISA) (“Employee Welfare Plans”); or (C) any plan, policy, program or arrangement which provides nonqualified deferred compensation benefits, bonus or compensation benefits, severance benefits, incentive or compensation benefits, “change of control” benefits, equity-based compensation awards, executive or supplemental income benefits, or any of its Subsidiaries participates other program, plan, policy or to arrangement which any such Employeesprovides retirement, Consultants health, life, disability, accident, vacation, tuition reimbursement or Directors are a party material fringe benefits (the “Compensation and Benefit Other Plans”). Except as required by None of the terms of this Agreement Company nor Commonly Controlled Entities currently participates in or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries contributes to or maintains or has any commitment obligation to create any additional Compensation and Benefit Plan contribute to (or has or reasonably expects to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and incur any other applicable law have been timely made. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, Liability with respect to to), (1) any Compensation and Benefit Employee Pension Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is Section 412 of the Code or was a (2) any multiemployer plan under Subtitle E of Title IV (as defined in Section 3(37) of ERISA. To ) (“Multiemployer Plan”), and none of the knowledge of Cardinal, there is no pending investigation Company nor any Commonly Controlled Entities has incurred or enforcement action by the PBGC, the DOL reasonably expects to incur any current or IRS or any other governmental agency potential withdrawal Liability with respect to any Compensation and Benefit Multiemployer Plan.
. The Company does not maintain or have any obligation to contribute to (ivor any other Liability with respect to) All contributions any funded or unfunded Employee Welfare Plan or Other Plan which provides post retirement health, accident or life insurance benefits to current or former employees, current or former independent contractors, current or future retirees, their spouses, dependents or beneficiaries, other than health benefits required to be made provided to former employees, their spouses and other dependents under the terms of any Compensation and Benefit Plan COBRA or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statementssimilar state Law. None of CardinalAny Employee Pension Plan, any Employee Welfare Plan and any Other Plan shall be referred to herein collectively as the “Employee Plans.” Solely for purposes of its Subsidiaries Section 4.34, a “Commonly Controlled Entity” means any entity (whether or any ERISA Affiliate not incorporated) which is under common control with the Company within the meaning of Sections 414(b), (xc), (m) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29(o) of the Code; provided, and (y) has taken any action, or omitted to take any actionhowever, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor such term shall not include any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under entity which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a resulthas, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinalan ownership interest in Seller, or any subsidiary of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of entity which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a resulthas, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedulean ownership interest in Seller.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Memorial Production Partners LP)
Employee Benefit Plans. (ia) On Other than benefit plans for which the Acquired Companies have been indemnified pursuant to Section 6.03(m)(i) of Cardinal’s Disclosure Schedule8.2(a)(vi), Cardinal has set forth a complete and accurate list of the "BENEFIT PLANS SCHEDULE" attached hereto lists all existing bonus, incentive, deferred or incentive compensation, pensionprofit sharing, retirement, profit-sharingvacation, thriftsick leave, savingshospitalization or severance plans, "employee stock ownershipbenefit plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, stock bonus, stock purchase, restricted stock, stock option, severance, welfare as amended ("ERISA")) and material fringe benefit plansplans sponsored, survivor life insurance, split dollar maintained or other life insurance benefit plan, employment contributed to by any Acquired Company for the purpose of providing benefits to the employees of the Acquired Companies or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or with respect to which any such Employees, Consultants or Directors are a party Acquired Company has any liability (the “Compensation and Benefit Plans”"PLANS"). Except The BENEFIT PLANS SCHEDULE sets forth accurately a summary description of all of the Acquired Companies' bonus plans and all bonuses (whether performance, annual, stay, retention or otherwise) and all deferred compensation and similar items (whether declared, undeclared or accrued) owing to any employee of, or independent contractor to, any Acquired Company (the "BONUSES"). The BENEFIT PLANS SCHEDULE sets forth, with respect to each type of Bonus and with respect to each individual beneficiary thereof, the following information: the amount accrued, the amount declared, and the obligor thereon; provided, however, that to the extent that a bonus amount cannot be reasonably estimated, no amount declared with respect to such bonus will be listed on the BENEFIT PLANS SCHEDULE. None of the Plans are subject to Title IV of ERISA nor provide for medical or life insurance benefits to retired or former employees of any Acquired Company (other than as required by the terms of this Agreement under Code Section 4980B, or similar state law). Each Acquired Company is not a participating or contributing employer in any "multiemployer plan" (as Previously Disclosed on defined in Section 6.03(m)(i3(37) of Cardinal’s Disclosure Schedule, neither Cardinal ERISA) with respect to employees of the Acquired Companies nor any of its Subsidiaries has any commitment Acquired Company have any actual or potential withdrawal liability with respect to create any additional Compensation and Benefit Plan multiemployer plan or to modify any liability in connection with the termination or change reorganization of any existing Compensation and Benefit Planmultiemployer plan.
(iib) Each Compensation Except as set forth in the BENEFIT PLANS SCHEDULE, each such Plan is in all material respects in compliance, and Benefit Plan has been operated and administered in all material respects in accordance accordance, with its terms and with the applicable lawprovisions of ERISA and the Code and all other Applicable Laws, including, but not limited to, ERISAmedical continuation under Code Section 4980B. Except as set forth in the BENEFIT PLANS SCHEDULE, no Acquired Company has (i) engaged in any transaction prohibited by ERISA or the Code; (ii) breached any fiduciary duty owed by it with respect to the Plans described above; or (iii) failed to file and distribute timely and properly all reports and information required to be filed or distributed in accordance with ERISA or the Code.
(c) Without material exception, all contributions, premiums or payments under or with respect to each Plan which are due on or before the Securities Act, the Exchange Act, the Age Discrimination in Employment ActClosing Date have been paid, or any regulations or rules promulgated thereunderto the extent such payments are not yet due, and all 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. Each Compensation and Benefit accrued to the extent such accrual is required.
(d) Except as set forth in the BENEFIT PLANS SCHEDULE, each Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section section 401(a) of the Code (i) has been amended to reflect all requirements of the Tax Reform Act of 1986 and all subsequent legislation which is required to be adopted prior to the end of the applicable remedial amendment period and (ii) has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to which considers the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 terms of the Code or Section 502 of ERISA, assuming Plan as amended for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofchanges in law.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiie) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans BENEFIT PLANS SCHEDULE and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to employer contributions obligations under the Plans, each Acquired Company has not incurred and has no reason to expect that it will incur, any liability to the Pension Benefit Guaranty Corporation (other than non-delinquent premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability) or under the Code with respect to any employee pension benefit plan that any Acquired Company or any other entity, that together with any Acquired Company is treated as part of any Compensation and Benefit Plan that is an operational failure a single employer under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A 414 of the Code, respecting maintains or ever has maintained or to which any such taxof them contributes, interest ever has contributed, or penalty under Section 409A ever has been required to contribute.
(f) Each individual who has received compensation for the performance of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available services on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result behalf of any termination of employment prior to Acquired Company has been properly classified as an employee or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable independent contractor in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codeaccordance with Applicable Laws.
Appears in 1 contract
Samples: Stock Purchase Agreement (Magellan Health Services Inc)
Employee Benefit Plans. (a) Schedule 4.17(a) lists (i) On each "employee benefit plan" (as such term is defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure ScheduleERISA) at any time contributed to, Cardinal maintained or sponsored by any Vectura Party or any of its Affiliates, or with respect to which any Vectura Party or any of its Affiliates has set forth a complete any liability or potential liability; and accurate list of all existing (ii) each other retirement, savings, deferred compensation, severance, stock, performance, bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance material employee benefit plan, employment policy, or severance agreements and all similar practicesarrangement of any kind, policies and arrangements in contributed to, maintained or sponsored by any Vectura Party or any of its Affiliates, or with respect to which any Vectura Party or any of its Affiliates has any liability or potential liability; in each case for the benefit of any current employees (whether active or on leave of absence) of any Vectura Party or its Subsidiaries ("Vectura Current Employees") or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) employees of Cardinal any Vectura Party or any of its Subsidiaries participates or to which any such ("Vectura Former Employees" and together with Vectura Current Employees, Consultants "Vectura Employees") or Directors are a party their respective beneficiaries and dependents (the “Compensation and collectively, "Vectura Employee Benefit Plans”"; provided that "Vectura Employee Benefit Plans" shall not include routine administrative procedures, government-required programs or Vectura Foreign Plans). Except as required Schedule 4.17(a) also specifies which Vectura Employee Benefit Plans are maintained solely by one or more of the terms Vectura Parties or their respective Subsidiaries or solely for the benefit of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation Vectura Employees and their beneficiaries and dependents ("Vectura-Only Employee Benefit Plan or to modify or change any existing Compensation and Benefit PlanPlans").
(iib) Each Compensation Except as set forth in Schedule 4.17(b), all Vectura Employee Benefit Plans and Benefit Plan has been operated and administered any related trusts are in compliance in all material respects with and have been administered in accordance material compliance with its the terms of such plans and with any applicable lawcollective bargaining agreements, includingand all applicable requirements of law and regulations, including but not limited to, to the Code and ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all filingscontributions and premium payments required to be made to or on account of each such Vectura Employee Benefit Plan under the terms thereof, disclosures ERISA or the Code for all periods of time prior to the date hereof and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law Closing Date have been timely made. Each Compensation and or will be, as the case may be, made or properly accrued.
(c) Except as set forth in Schedule 4.17(c), with respect to any Vectura Employee Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified qualify under Section 401(a) of the Code other than a Multiemployer Plan, a favorable determination letter as to qualification under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with been issued by the Code (including a determination that IRS and the related trust under such Compensation and Benefit Plan is has been determined to be exempt from tax taxation under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) Code and no events or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances have occurred that could be reasonably expected to materially adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period qualified status of any such transaction expired plan or trust. Except as of the date hereof.
(iii) No Compensation and set forth in Schedule 4.17(c), no Vectura-Only Employee Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that Plan is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or to Section 412 or 4971 of the Code. Except as set forth in Schedule 4.17(c), no Vectura Employee Benefit Plan is a "Multiemployer Plan." Except as set forth in Schedule 4.17(c): with respect to each Vectura-Only Employee Benefit Plan that is subject to Section 412 of the Code or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is has been no pending investigation application for or enforcement action waiver of the minimum funding standards imposed by Section 412 of the PBGC, the DOL or IRS or any other governmental agency Code with respect to any Compensation and Vectura-Only Employee Benefit Plan.
(iv) All contributions required , and there are no facts or circumstances that would materially change the funded status of any such Vectura-Only Employee Benefit Plan in an adverse manner; no material asset of any Vectura Party or its Subsidiaries to be made acquired by ACL Holdings, directly or indirectly, pursuant to this Agreement is subject to any material lien under ERISA or the terms of Code; and there are no pending or threatened actions, suits, investigations or claims with respect to any Compensation and Vectura Employee Benefit Plan or any employee benefit arrangements under any collective bargaining agreement (other than routine claims for benefits) which could result in material liability to which Cardinal ACL Holdings or any of its Subsidiaries is Affiliates after the Closing.
(d) Except as otherwise set forth in Schedule 4.17(d), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) materially increase any benefits otherwise payable under any Vectura Employee Benefit Plan or (ii) result in the acceleration of the time of payment or vesting of any such benefits to any material extent.
(e) Each Vectura Party has delivered or made available to CSX a party true, correct and complete copy of all plan documents and the current summary plan descriptions (if any) for each Vectura Employee Benefit Plan. In addition, with respect to each Vectura Employee Benefit Plan, the Vectura Parties have been timely delivered or made available to CSX a true, correct and complete copy of: (i) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any, or have been reflected on Cardinal’s any similar filing made with any foreign authority; (ii) the most recent annual financial statements. None report, if any; (iii) the most recent actuarial report, if any; and (iv) the most recent determination letter from the IRS or similar document issued by any other taxing authority, if any.
(f) No event has occurred and, to the knowledge of Cardinalthe Vectura Parties, no circumstances now exist that could be reasonably expected to result in, any material liability under Title IV of ERISA or Section 412 of the Code with respect to any employee benefit plan sponsored by Vectura or any of its Affiliates that would be a liability of ACL Holdings or any of its Affiliates following the Closing (other than the payment of contributions and premiums to the Pension Benefit Guaranty Corporation that are not yet due).
(g) Except as set forth in Schedule 4.17(g), no Vectura Party nor any of its Subsidiaries contributes to, maintains or sponsors or has any liability with respect to any employee benefit plan, agreement or arrangement applicable to employees of any Vectura Party or any ERISA Affiliate Subsidiary located outside the United States (xthe "Vectura Foreign Plans"). Each Vectura Foreign Plan is in compliance in all material respects with all laws applicable thereto and the respective requirements of such Vectura Foreign Plan's governing documents. There are no material actions, suits or claims (other than routine claims for benefits) has providedwith respect to any Vectura Foreign Plan, or would and no circumstances exist which could reasonably be expected to be required to provide, security give rise to any Pension Plan pursuant to Section 401(a)(29) of the Codesuch material actions, and (y) has taken any action, suits or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAclaims.
(vh) Neither Cardinal Except as set forth in Schedule 4.17(h): (i) no Multiemployer Plan in which any Vectura Party or any of their respective Subsidiaries has participated within the past six years has been terminated; (ii) no proceeding has been initiated to terminate any Multiemployer Plan that is a Vectura Employee Benefit Plan (a "Vectura Multiemployer Plan") and there has been no "reportable event" (within the meaning of Section 4043(c) of ERISA) with respect to any Vectura Multiemployer Plan within the past six years; (iii) no Vectura Multiemployer Plan is in reorganization as described in Section 4241 of ERISA and no Vectura Multiemployer Plan is insolvent as described in Section 4245 of ERISA; (iv) no Vectura Party nor any of its Subsidiaries has incurred any obligations to provide retiree health liability on account of a "partial withdrawal" or a "complete withdrawal" (within the meaning of Sections 4205 and life insurance4203, retiree long-term care insurance or retiree death or other benefits under respectively, of ERISA) from any Compensation and Benefit PlanMultiemployer Plan that has not been satisfied in full, other than benefits mandated by Section 4980B of the Code, and each no such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunderhas been asserted that has not been satisfied in full, and there has been no communication to Employees by Cardinal do not now exist any events or circumstances which could result in any such partial or complete withdrawal; and (v) none of the Vectura Parties nor any of its their respective Subsidiaries that would reasonably be expected to promise is bound by any contract or guarantee such Employees retiree health agreement or life insurance has any obligation or retiree death or other benefits on a permanent basisliability described in Section 4204 of ERISA.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiii) Except as set forth on Section 6.03(m)(viiiin Schedule 4.17(i): (i) each Vectura Party and its Subsidiaries have complied with the health care continuation requirements of Cardinal’s Disclosure Schedule, the consummation Part 6 of Subtitle B of Title I of ERISA; and (ii) none of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal Vectura Parties nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated has any obligation under any Vectura Employee Benefit Plan or otherwise to make a payment provide medical, dental or life insurance benefits to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed Vectura Former Employees or to be performed any other person, except as specifically required by Part 6 of Subtitle B of Title I of ERISA and except in the futureamounts appropriately reflected on the appropriate Vectura Balance Sheet.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(iPrior to the date hereof, the Borrower has provided the Borrower with a list (set forth in the Disclosure Letter) identifying each material "employee benefit plan," as defined in section 3(3) of Cardinal’s Disclosure ScheduleERISA, Cardinal has set forth a complete each material employment, severance or similar contract, plan, arrangement or policy applicable to any director, former director, employee or former employee of the Borrower and accurate list of all existing bonuseach material plan or arrangement (written or oral), incentive, deferred providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit planbenefits) which is maintained, employment administered or severance agreements contributed to by the Borrower and all similar practices, policies and arrangements in which covers any current employee or director or former employee or director of the Borrower, or under which the Borrower has any liability. Such material plans (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”excluding any such plan that is a "multiemployer plan," as defined in section 3(37) of Cardinal or any of its Subsidiaries participates or ERISA) are referred to which any such Employees, Consultants or Directors are a party collectively herein as the "Borrower Employee Plans."
(the “Compensation and Benefit Plans”). b) Except as required by set forth in the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure ScheduleLetter, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit each Borrower Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorders, rules and regulations (including but not limited to, ERISA, to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the Securities Actaggregate, have a Material Adverse Effect on the Exchange ActBorrower.
(c) Neither the Borrower nor any affiliate of the Borrower has incurred a liability under Title IV of ERISA that has not been satisfied in full, and no condition exists that presents a material risk to the Age Discrimination in Employment Act, Borrower or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, affiliate of the Code, Borrower of incurring any such liability other than liability for premiums due the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law Pension Benefit Guaranty Corporation (which premiums have been timely made. Each Compensation and Benefit Plan paid when due).
(d) All Borrower Employee Plans that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is are intended to be qualified under Section section 401(a) of the Code has received a favorable determination letter have been the subject of determination, opinion, notification or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) advisory letters from the Internal Revenue Service (“"IRS”") which the company has made available to the Lender. Each such letter as the effect of stating that each such Borrower Employee Plan is qualified and is exempt from Federal income taxes under section 501(a) of the Code. The remedial amendment period with respect to each such Borrower Employee Plan has not expired for any amendment to any such Borrower Employee Plan that was made on or after the Compensation and Benefit Plan uses a prototype or volume submitter plan that is date of the subject of an IRS opinion application for the determination, opinion, notification or advisory letter. No such determination, and Cardinal is not aware opinion, notification or advisory letter has been revoked, nor has any event occurred since the date of any circumstances the most recent such letter that could would adversely affect such qualification or that are likely to result its qualification, other than as set forth in the revocation Disclosure Letter.
(e) Except as set forth in the Disclosure Letter, no director or officer or other employee of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Borrower or any of its Subsidiaries will become entitled to a material tax any retirement, severance or penalty imposed by either Section 4975 similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to any employee stock option or other benefit under any stock option plan or compensation plan or arrangement of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 Borrower) solely as a result of the Code that the taxable period of any such transaction expired as of the date hereoftransactions contemplated hereby.
(iiif) No Compensation Except as reflected in Disclosure Letter, no Borrower Employee Plan provides post-retirement health and Benefit Plans currently maintainedmedical, life or maintained within other insurance benefits for retired employees of the last six years, by Cardinal Borrower or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum paymentsbenefit coverage mandated by applicable statute, including benefits provided pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as codified in Code section 4980B and ERISA section 601 et seq., as amended from time to time ("COBRA"); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiig) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting Disclosure Letter, there has been no amendment to, written interpretation or acceleration of any benefits under any Compensation and Benefit Plan other than announcement (whether or not written) by the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal Borrower or any of its Subsidiaries that affiliates relating to, or change in employee participation or coverage under, any Borrower Employee Plan which would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as increase materially the expense of maintaining such terms are defined in Section 280G Borrower Employee Plan above the level of the Code), without regard to whether such payment is reasonable compensation expense incurred in respect thereof for personal services performed or to be performed in the futuretwelve (12) months ended on the Borrower Balance Sheet Date.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Credit Agreement (S3 Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(iEN Bancorp Disclosure Schedule 3.12(a) of Cardinal’s Disclosure Schedule, Cardinal has set forth includes a complete and accurate list of all existing bonus, incentive, deferred compensation, supplemental executive retirement plans, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, stock appreciation, phantom stock, severance, health and welfare benefit plans (including life insurance and disability insurance plans and paid time off policies, severance policies and other material benefit policies and procedures), fringe benefit plans, survivor life insuranceemployment, split dollar or other life insurance benefit planconsulting, employment or severance settlement and change in control agreements and all similar other material benefit practices, policies and arrangements maintained by EN Bancorp or any EN Bancorp Subsidiary in which any current employee or former employee (the “Employees”)employee, current consultant or former consultant (the “Consultants”) or current director or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employeesemployee, Consultants consultant or Directors are director is a party or is otherwise entitled to receive benefits (the “EN Bancorp Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Neither EN Bancorp nor any of its Subsidiaries EN Bancorp Subsidiary has any commitment to create any additional EN Bancorp Compensation and Benefit Plan or to modify materially modify, change or change renew any existing EN Bancorp Compensation and Benefit PlanPlan (any modification or change that increases the cost of such plans would be deemed material), except as required to maintain the qualified status thereof. EN Bancorp has made available to ESSA Bancorp true and correct copies of the EN Bancorp Compensation and Benefit Plans.
(iib) Each EN Bancorp Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange ActAffordable Care Act (“ACA”), the Age Discrimination in Employment ActAct (as amended), or any COBRA, the Health Insurance Portability and Accountability Act (“HIPAA”) and all regulations or rules promulgated thereunder, and all material filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, ACA the Age Discrimination in Employment Act Act, COBRA and any HIPAA and each other applicable law have been timely mademade or any interest, fines, penalties or other impositions for late filings have been paid in full. Each EN Bancorp Compensation and Benefit Plan that which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype plan or volume submitter plan that is advisory opinion letter from the subject of an IRS opinion or advisory letterIRS, and Cardinal EN Bancorp is not aware of any circumstances that could adversely affect such qualification or that are circumstance which is reasonably likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination such letter. There is no material pending or, to the knowledge Knowledge of CardinalEN Bancorp, threatened legal action, suit or claim relating to any of the EN Bancorp Compensation and Benefit Plans (other than routine claims for benefits). Neither Cardinal EN Bancorp nor any of its Subsidiaries EN Bancorp Subsidiary has engaged in a transaction, or omitted to take any action, with respect to any EN Bancorp Compensation and Benefit Plan that would reasonably be expected to subject Cardinal EN Bancorp or any of its Subsidiaries EN Bancorp Subsidiary to a material unpaid tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iiic) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or Neither EN Bancorp nor any entity (an “ERISA Affiliate”) that which is considered one employer with Cardinal EN Bancorp under Section 4001(a)(144001(b)(1) of ERISA or Section 414(b) or (c) 414 of the Code (an “EN Bancorp ERISA Affiliate”) currently maintains or has ever maintained an EN Bancorp Compensation and Benefit Plan which is or was subject to Title IV of ERISA. Neither EN Bancorp nor any EN Bancorp ERISA or is or was a Affiliate has contributed to any “multiemployer plan under Subtitle E of Title IV plan,” as defined in Section 3(37) of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(ivd) All material contributions required to be made under the terms of any EN Bancorp Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Codemade, and (y) all anticipated material contributions and funding obligations are accrued on EN Bancorp’s consolidated financial statements to the extent required by GAAP. EN Bancorp and each EN Bancorp Subsidiary has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in expensed and accrued as a liability the imposition present value of a lien material future benefits under Section 412(n) of the Code or pursuant to ERISAeach applicable EN Bancorp Compensation and Benefit Plan for financial reporting purposes as required by GAAP.
(ve) Neither Cardinal EN Bancorp nor any of its Subsidiaries EN Bancorp Subsidiary has any obligations obligation to provide retiree health and health, life insurance, retiree long-term care insurance or disability insurance, or any retiree death or other benefits benefit under any EN Bancorp Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there . There has been no communication to Employees employees by Cardinal EN Bancorp or any of its Subsidiaries EN Bancorp Subsidiary that would reasonably be expected to promise or guarantee such Employees employees retiree health health, life insurance, or life insurance disability insurance, or any retiree death or other benefits on a permanent basisbenefits.
(vif) Cardinal EN Bancorp and its the EN Bancorp Subsidiaries do not maintain any EN Bancorp Compensation and Benefit Plans Plan covering foreign Employeesemployees who are not United States residents.
(viig) With respect to each EN Bancorp Compensation and Benefit Plan, if applicable, Cardinal EN Bancorp has provided or made available to United, true and complete ESSA Bancorp copies of existingthe: (A) Compensation and Benefit Plan documents and amendments thereto; (Bi) trust instruments and insurance contracts; (Cii) two three most recent IRS Forms 5500 filed with the IRS5500; (Diii) three most recent actuarial report reports and financial statementstatements; (Eiv) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (Gv) most recent determination or opinion letter issued by the IRS; (Hvi) any Form 5310 or Form 5330 filed with the IRSIRS within the last three years; and (Ivii) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiih) Except as set forth on Section 6.03(m)(viii) of Cardinal’s provided in EN Bancorp Disclosure ScheduleSchedule 3.12(h), the consummation of the transactions contemplated by this Agreement would Merger will not, directly or indirectly (including, without limitation, as a result of any termination of employment or service at any time prior to or following the Effective Time) reasonably be expected to (Ai) entitle any Employeeemployee, Consultant consultant or Director director to any payment or benefit (including severance pay pay, change in control benefit, or similar compensation) or any increase in compensation, (Bii) entitle any employee or independent contractor to terminate any plan, agreement or arrangement without cause or good reason and continue to accrue future benefits thereunder, or result in the vesting or acceleration of any benefits under any EN Bancorp Compensation and Benefit Plan Plan, other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or EN Bancorp Option Plans, (Ciii) result in any material increase in benefits payable under any EN Bancorp Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or (iv) entitle any current or former employee, director or independent contractor of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal EN Bancorp or any of its Subsidiaries that would be characterized as an EN Bancorp Subsidiary to any actual or deemed payment (or benefit) which could constitute a “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are term is defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xii) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified All deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust plans, programs or trusts of which Cardinal is the grantor arrangements, within the meaning of subpart ESection 409A of the Code, part I, subchapter J, chapter have (i) between January 1, subtitle A 2005 and December 31, 2008, been operated in all material respects in good faith compliance with Section 409A of the Code that are subject to claims of creditorsand IRS Notice 2005-01 and (ii) since January 1, and except as set forth on 2009 (or such later date permitted under applicable guidance), been in documentary compliance in all material respects with Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, 409A of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), Code and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure ScheduleIRS regulations and guidance thereunder.
(xiij) Except as set forth on Section 6.03(m)(xiiEN Bancorp Disclosure Schedule 3.12(j), there are no stock options, stock appreciation or similar rights, earned dividends or dividend equivalents, or shares of restricted stock, or other equity compensation awards outstanding under any of the EN Bancorp Compensation and Benefit Plans or otherwise as of the date hereof, and none will be granted, awarded, or credited after the date hereof.
(k) EN Bancorp Disclosure Schedule 3.12(k) sets forth, as of Cardinal’s the payroll date immediately preceding the date of this Agreement, a list of the full names of all officers and employees of Eagle Bank or EN Bancorp, their title and rate of salary, and their date of hire.
(l) Since December 31, 2014, through and including the date of this Agreement, except as disclosed in the EN Bancorp Disclosure ScheduleSchedule 3.12(l), neither Cardinal EN Bancorp nor any EN Bancorp Subsidiary has, except for (i) normal increases for non-executive officer employees made in the ordinary course of its Subsidiaries business consistent with past practice, or (ii) as required by applicable law, increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any executive officer, employee, or director from the amount thereof in effect as of December 31, 2014 (which amounts have been previously made available to ESSA Bancorp), granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay (except as required under the terms of agreements or severance plans listed on EN Bancorp Disclosure Schedule 3.12(a), as in effect as of the date hereof), or paid any bonus other than the customary year-end bonuses in amounts consistent with past practice.
(m) EN Bancorp Disclosure Schedule 3.12(m) sets forth the current base salary for each of the five (5) individuals listed on EN Bancorp Disclosure Schedule 3.12(m) who are parties to the change in control agreements set forth in EN Bancorp Disclosure Schedule 3.12(a) and to the “Special Bonus Upon Change in Control Letter Agreements” dated November 12, 2014 (“Bonus Agreements”). EN Bancorp Disclosure Schedule 3.12(m) also sets forth, for each person who has made any an employment agreement, taken a severance agreement and/or a change in control agreement and Bonus Agreements, the aggregate dollar value of each amount that would be paid or payable to such person under such agreements in the event of a change in control or termination of employment in connection with or following a change in control (assuming a termination of employment and a change in control date of June 30, 2015), as well as the aggregate dollar value of any action, or omitted to take any action, other benefit with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or such person that would reasonably be expected to subject Cardinal accelerated, enhanced or any of its Subsidiaries to any obligation to report any amount paid in connection with a change in control or withhold any amount as includable termination in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Codeconnection with a change in control, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before in each case, the Effective Time to prevent any basis for such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codedetermination.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(iCentral has delivered to BankUnited prior to the execution of this Agreement true and complete copies, a list of which has been provided as Central Disclosure Schedule
(a) (or, in the case of bonus or other incentive plans, summaries thereof and financial data with respect thereto) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonus, incentive, deferred compensation, material pension, retirement, profit-sharing, thriftdeferred compensation, savingsstock option, employee stock ownership, stock bonusseverance pay, stock purchasevacation, restricted stocksick pay, stock optionbonus or other material incentive plans, severanceall other material employee programs, welfare arrangements or agreements, whether arrived at through collective bargaining or otherwise, all material medical, vision, dental or other health plans, all life insurance plans and all other material employee benefit plans or fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited towithout limitation, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination all "employee benefit plans" as that term is defined in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a3(3) of the Code has received a favorable determination letter or has applied for a favorable determination letter Employee Retirement Income Security Act of 1974, as amended ("ERISA"), currently adopted by, maintained by, sponsored in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter whole or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transactionpart by, or omitted contributed to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal Central or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of affiliate thereof for the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms benefit of any Compensation Employee or under which any Employee is eligible to participate and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal Central or any of its Subsidiaries could have any liability contingent or otherwise (collectively, the "Central Benefit Plans"). Any of the Central Benefit Plans which is an "employee pension benefit plan," as that term is defined in Section 3(2) of ERISA, is referred to herein as a party have been timely made "Central ERISA Plan." Any of the Central Benefit Plans pursuant to which Central is or have been reflected on Cardinal’s financial statements. None of Cardinalmay become obligated to, or obligated to cause any of its Subsidiaries or any ERISA Affiliate (x) has providedother Person to, issue, deliver or sell shares of capital stock of Central or any of its Subsidiaries, or would grant, extend or enter into any option, warrant, call, right, commitment or agreement to issue, deliver or sell shares, or any other interest in respect of capital stock of Central or any of its Subsidiaries, is referred to herein as a "Central Stock Plan." No Central Benefit Plan is or has been a multiemployer plan within the meaning of Section 3(37) of ERISA. Central has set forth in Section 5.13 of the Central Disclosure Schedule (i) a list of all of the Central Benefit Plans, (ii) a list of Central Benefit Plans that are Central ERISA Plans, (iii) a list of Central Benefit Plans that are Central Stock Plans and (iv) a list of the number of shares covered by, exercise prices for, and holders of, all stock options granted and available for grant under the Central Stock Plans.
(b) To the best knowledge of Central's management, all Central Benefit Plans are in compliance with the applicable terms of ERISA and the Code and any other applicable laws, rules and regulations the breach or violation of which could reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, result in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAMaterial Adverse Effect.
(vc) All liabilities under any Central Benefit Plan are fully accrued or reserved against in the Central Financial Statements in accordance with GAAP. No Central ERISA Plan which is a defined benefit pension plan has any "unfunded current liability," as that term is defined in Section 302(d)(8)(A) of ERISA, and the present fair market value of the assets of any such plan exceeds the plan's "benefit liabilities," as that term is defined in Section 4001(a)(16) of ERISA, when determined under actuarial factors that would apply if the plan terminated in accordance with all applicable legal requirements.
(d) Neither Cardinal Central nor any of its Subsidiaries has any obligations to provide for retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Central Benefit Plan may be amended or terminated otherwise, except as set forth in the Central Disclosure Schedule. There are no restrictions on the rights of Central or its Subsidiaries to amend or terminate any such Central Benefit Plan without incurring any material liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that except for such restrictions as would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on not have a permanent basisMaterial Adverse Effect.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiie) Except as set forth on Section 6.03(m)(viii) of Cardinal’s in the Central Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement would not, directly hereby or indirectly thereby will (i) result in any payment (including, without limitation, as a result of any termination of employment prior to severance, golden parachute or following the Effective Timeotherwise) reasonably be expected to (A) entitle any Employee, Consultant or Director becoming due to any payment (including severance pay Employees under any Central Benefit Plan or similar compensation) or any increase in compensationotherwise, (Bii) result in the vesting or acceleration of increase any benefits otherwise payable under any Compensation and Central Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (Ciii) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result acceleration of the limitations under Section 162(m) time of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly payment or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result vesting of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the futurebenefits.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (i) On Section 6.03(m)(i) of CardinalCNB Financial’s Disclosure Schedule, Cardinal has set forth Letter contains a complete and accurate list of all existing bonuspension, incentiveretirement, stock option, stock purchase, stock ownership, savings, stock appreciation right, profit sharing, deferred compensation, pensionconsulting, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchasegroup insurance, restricted stock, stock option, severance, welfare severance and fringe other benefit plans, survivor life insurancecontracts, split dollar agreements and arrangements, including, but not limited to, “employee benefit plans,” as defined in Section 3(3) of ERISA, incentive and welfare policies, contracts, plans and arrangements and all trust agreements related thereto with respect to any present or former directors, officers or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) employees of Cardinal CNB Financial or any of its Subsidiaries participates or (hereinafter referred to which any such Employees, Consultants or Directors are a party (collectively as the “Compensation and Benefit CNB Financial Employee Plans”). Except as required by the terms CNB Financial has previously delivered or made available to Berkshire Hills Bancorp true and complete copies of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinaleach agreement, plan and other documents referenced in CNB Financial’s Disclosure ScheduleLetter, neither Cardinal nor along with, where applicable, copies of the IRS Form 5500 or 5500-C for the most recently completed year. There has been no announcement or commitment by CNB Financial or any of its Subsidiaries has any commitment to create any an additional Compensation and Benefit Plan CNB Financial Employee Plan, or to modify or change amend any existing Compensation and Benefit CNB Financial Employee Plan.
(ii) Each Compensation and Benefit , except for amendments required by applicable law which do not materially increase the cost of such CNB Financial Employee Plan. To the Knowledge of CNB Financial, each CNB Financial Employee Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the CodeIRC, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or 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 CodeIRC, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law have been timely mademade or any interest, fines, penalties or other impositions for late filings have been paid in full.
(ii) There is no pending or threatened litigation, administrative action or proceeding relating to any CNB Financial Employee Plan. All of the CNB Financial Employee Plans comply in all material respects with all applicable requirements of ERISA, the IRC and other applicable laws. There has occurred no “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the IRC) with respect to the CNB Financial Employee Plans which is likely to result in the imposition of any penalties or taxes upon CNB Financial or any of its Subsidiaries under Section 502(i) of ERISA or Section 4975 of the IRC.
(iii) Each Compensation and Benefit CNB Financial Employee Plan that is an “employee pension benefit plan” within the meaning of (as defined in Section 3(2) of ERISA (a “Pension Plan”ERISA) and that which is intended to be qualified under Section 401(a) of the Code IRC (a "CNB Financial Qualified Plan”) has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is CNB Financial and its Subsidiaries are not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a such favorable determination letter. There No CNB Financial Qualified Plan is no material pending or, to an “employee stock ownership plan” (as defined in Section 4975(e)(7) of the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefitsIRC). Neither Cardinal CNB Financial nor any Subsidiary of CNB Financial or any ERISA Affiliate has ever sponsored a CNB Financial Qualified Plan that is subject to Title IV of ERISA (any such plan shall be referred to herein as a “CNB Financial Pension Plan”). Neither CNB Financial nor its Subsidiaries or any ERISA Affiliate has engaged contributed to any “multiemployer plan,” as defined in a transactionSection 3(37) of ERISA, on or omitted to take any actionafter September 26, with 1980.
(iv) With respect to any Compensation and Benefit each CNB Financial Employee Plan that would reasonably be expected to subject Cardinal is a “multiple employer plan” (as defined in Section 4063 of ERISA): (A) none of CNB Financial or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 Subsidiaries, nor any of the Code or Section 502 of ERISAtheir respective ERISA Affiliates, assuming for purposes of Section 4975 of the Code has received any notification, nor has any actual knowledge, that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal if CNB Financial or any of its Subsidiaries or any entity of their respective ERISA Affiliates were to experience a withdrawal or partial withdrawal from such plan it would incur withdrawal liability that would be reasonably likely to have a Material Adverse Effect on CNB Financial; and (an “ERISA Affiliate”B) that is considered one employer with Cardinal under Section 4001(a)(14) none of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal CNB Financial or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of CardinalSubsidiaries, nor any of its Subsidiaries or their respective ERISA Affiliates, has received any ERISA Affiliate (x) notification, nor has providedany reason to believe, that any CNB Financial Employee Plan is in reorganization, has been terminated, is insolvent, or would reasonably may be expected to in reorganization, become insolvent or be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAterminated.
(v) Each CNB Financial Employee Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the IRC) and which has not been terminated has been operated since January 1, 2005 in good faith compliance with Section 409A of the IRC and the regulations issued under Section 409A of the IRC.
(vi) Neither Cardinal CNB Financial nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree longfor post-term care insurance retirement or retiree death or other post-employment benefits under any Compensation and Benefit PlanCNB Financial Employee Plan that cannot be amended or terminated upon 60 days’ notice or less without incurring any liability thereunder, other than benefits mandated except for coverage required by Part 6 of Title I of ERISA or Section 4980B of the CodeIRC, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereundersimilar state laws, and there has been no communication to Employees the cost of which is borne by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employeesthe insured individuals.
(vii) With All contributions required to be made with respect to each Compensation any CNB Financial Employee Plan by applicable law or regulation or by any plan document or other contractual undertaking, and Benefit all premiums due or payable with respect to insurance policies funding any CNB Financial Employee Plan, if applicablefor any period through the date hereof have been timely made or paid in full, Cardinal has provided or to the extent not required to be made available or paid on or before the date hereof, have been fully reflected in the financial statements of CNB Financial. All anticipated contributions and funding obligations are accrued on CNB Financial’s consolidated financial statements to United, true and complete copies the extent required by GAAP. Each CNB Financial Employee Plan that is an employee welfare benefit plan under Section 3(1) of existing: ERISA either (A) Compensation is funded through an insurance company contract and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would is not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individualwelfare benefit fund” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A Section 419 of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xiIRC or (B) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Scheduleunfunded.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (ia) On The Company has provided Parent with a list identifying each material "employee benefit plan", as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974 ("ERISA"), Cardinal has set forth a complete each material employment, severance or similar contract, plan, arrangement or policy applicable to any director or officer of the Company and accurate list of all existing bonus, incentive, deferred each material plan or arrangement (written or oral) providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit planbenefits) which is maintained, employment administered or severance agreements and all similar practices, policies and arrangements in which any current or former employee (contributed to by the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal Company or any of its Subsidiaries participates affiliates (as defined in Section 10.15) and covers any employee or to which any such Employees, Consultants former employee of the Company or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries affiliates, or under which the Company or any of its affiliates has any commitment liability. Copies of such "employee benefit plans" (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof have been furnished to create Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any additional Compensation and Benefit Plan or such plan. Such plans are referred to modify or change any existing Compensation and Benefit Plancollectively herein as the "Company Employee Plans".
(iib) Each Compensation and Benefit Company Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorders, rules and regulations (including but not limited to, ERISA, to ERISA and the Code) which are applicable to such Plan, except where failure to so comply would not, individually or in the Securities Actaggregate, have a material adverse effect on the Exchange Act, Company.
(c) At no time has the Age Discrimination in Employment Act, Company or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by person who was at that time an affiliate of the Company maintained an employee benefit plan subject to Title IV of ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law have been timely made. .
(d) Each Compensation and Benefit Company Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a) of the Code has received been determined by the Internal Revenue Service to be so qualified and, to the best knowledge of the Company, has been so qualified during the period from its adoption to date, and each trust forming a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan part thereof is exempt from tax under pursuant to Section 501(a) of the Code.
(e) from the Internal Revenue Service (“IRS”) No director or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending officer or, to the knowledge of Cardinalthe Company, threatened legal action, suit or claim relating to other employee of the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Company or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect subsidiaries will become entitled to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinalretirement, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) benefit or any increase in compensation, (B) result in the vesting enhanced or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible accelerated benefit solely as a result of the limitations under Section 162(m) transactions contemplated hereby. Without limiting the generality of the Code and foregoing, no amount required to be paid or payable to or with respect to any employee of the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) Company or any of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of its subsidiaries in connection with the transactions contemplated by this Agreement hereby (including, without limitation, either solely as a result thereof or as a result of such transactions in conjunction with any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries other event) will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “"excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in " within the meaning of Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xif) As No Company Employee Plan provides post-retirement health and medical, life or other insurance benefits for retired employees of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal Company or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedulesubsidiaries.
(xiig) Except as set forth on Section 6.03(m)(xiiThere has been no amendment to, written interpretation or announcement (whether or not written) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of by the Code or that would reasonably be expected to subject Cardinal Company or any of its Subsidiaries to affiliates relating to, or change in employee participation or coverage under, any obligation to report any amount or withhold any amount as includable Company Employee Plan which would increase materially the expense of maintaining such Company Employee Plan above the level of the expense incurred in income and subject to tax, interest respect thereof for the 12 months ended on the Company Balance Sheet Date.
(h) At no time has the Company or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A person that was at that time an affiliate of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior Company contributed to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be been obligated to report any amount or withhold any amount as includable in income and subject contribute to tax, interest or any penalty by any service provider a "multiemployer plan" (as defined under in Section 409A 3(37) of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeERISA).
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(iCharter has delivered or made available to NationsBank prior to the execution of this Agreement true and complete copies (or, in the case of bonus or other incentive plans, summaries thereof and financial data with respect thereto) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonus, incentive, deferred compensation, material pension, retirement, profit-sharing, thriftdeferred compensation, savingsstock option, employee stock ownership, stock bonusseverance pay, stock purchasevacation, restricted stockbonus or other material incentive plans, stock optionall other material employee programs, severancearrangements or agreements, welfare whether arrived at through collective bargaining or otherwise, all material medical, vision, dental or other health plans, all life insurance plans and all other material employee benefit plans or fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited towithout limitation, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination all "employee benefit plans" as that term is defined in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a3(3) of the Code has received a favorable determination letter or has applied for a favorable determination letter Employee Retirement Income Security Act of 1974, as amended ("ERISA"), currently adopted by, maintained by, sponsored in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter whole or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transactionpart by, or omitted contributed to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal Charter or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of affiliate thereof for the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms benefit of any Compensation Employee or under which any Employee is eligible to participate and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal Charter or any of its Subsidiaries could have any liability contingent or otherwise (collectively, the "Charter Benefit Plans"). Any of the Charter Benefit Plans which is an "employee pension benefit plan," as that term is defined in Section 3(2) of ERISA, is referred to herein as a party have been timely made "Charter ERISA Plan." Any of the Charter Benefit Plans pursuant to which Charter is or have been reflected on Cardinal’s financial statements. None of Cardinalmay become obligated to, or obligated to cause any of its Subsidiaries or any ERISA Affiliate (x) has providedother Person to, issue, deliver or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) sell shares of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition capital stock of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal Charter or any of its Subsidiaries that would reasonably be expected Subsidiaries, or grant, extend or enter into any option, warrant, call, right, commitment or agreement to promise issue, deliver or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinalsell shares, or any other interest in respect of their respective Subsidiaries will be obligated to make a payment to an Employee capital stock of Cardinal Charter or any of its Subsidiaries that would be characterized Subsidiaries, is referred to herein as an “excess parachute payment” to an individual who a "Charter Stock Plan." No Charter Benefit Plan is or has been a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor multiemployer plan within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A Section 3(37) of ERISA. Charter has set forth in Section 5.12 of the Code that are subject to claims Charter Disclosure Schedule (i) a list of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, all of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Charter Benefit Plans, or any actions taken or omitted thereunder(ii) a list of Charter Benefit Plans that are Charter ERISA Plans, violate Section 409A (iii) a list of Charter Benefit Plans that are Charter Stock Plans and (iv) a list of the Codenumber of shares covered by, exercise prices for, and holders of, all stock options granted and available for grant under the Charter Stock Plans.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has Except as set forth a complete and accurate list of all existing bonuson the "Benefit Plans Schedule" attached ---------------------- hereto, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any with respect to current or former employee (employees of the “Employees”)Company and each of its Subsidiaries, current or former consultant (neither the “Consultants”) or current or former director (the “Directors”) of Cardinal or Company nor any of its Subsidiaries participates maintains or contributes to or has any actual or potential liability with respect to any (i) deferred compensation or bonus or retirement plans or arrangements, (ii) qualified or nonqualified defined contribution or defined benefit plans or arrangements which are employee pension benefit plans (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974 ("ERISA")), or (iii) employee welfare benefit plans, (as ----- defined in Section 3(1) of ERISA), equity option or equity purchase plans, or material fringe benefit plans or programs whether in writing or oral and whether or not terminated. Neither the Company nor any such Employeesof its Subsidiaries has ever contributed to any multiemployer pension plan (as defined in Section 3(37) of ERISA), Consultants and neither the Company nor any of its Subsidiaries has ever maintained or Directors are a party contributed to any defined benefit plan (the “Compensation and Benefit Plans”as defined in Section 3(35) of ERISA). Except Neither the Company nor any of its Subsidiaries maintains or contributes to any employee welfare benefit plan which provides health, accident or life insurance benefits to former employees, their spouses or dependents, other than in accordance with Section 4980B of the Code ("COBRA"). -----
(b) The employee welfare benefit plans (and related trusts and insurance contracts) set forth on the Benefit Plans Schedule comply in form and ---------------------- in operation in all respects with the requirements of applicable laws and regulations, including ERISA and the Code and the nondiscrimination rules thereof.
(c) All required reports and descriptions (including Form 5500 Annual Reports, Summary Annual Reports and Summary Plan Descriptions) with respect to the employee pension benefit plans and employee welfare benefit plans set forth on the Benefit Plans Schedule have been properly and timely filed with ---------------------- the appropriate government agency and distributed to participants as required by required. The Company and each of its Subsidiaries have complied with the terms requirements of this Agreement COBRA.
(d) With respect to each employee welfare benefit plan set forth on the Benefit Plans Schedule, (i) there have been no prohibited transactions as ---------------------- defined in Section 406 of ERISA or Section 4975 of the Code, (ii) no fiduciary (as Previously Disclosed on defined in Section 6.03(m)(i3(21) of Cardinal’s Disclosure ScheduleERISA) 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 such plans, and (iii) no actions, investigations, suits or claims with respect to the assets thereof (other than routine claims for benefits) are pending or threatened, and neither Cardinal the Company nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware knowledge of any circumstances that facts which would give rise to or could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries give rise to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofactions, suits or claims.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(viie) With respect to each Compensation and of the employee welfare benefit plans listed on the Benefit PlanPlans Schedule, if applicable, Cardinal has provided or made available the Sellers have furnished to United, the ---------------------- Purchaser true and complete copies of existing: (Ai) Compensation the plan documents, summary plan descriptions and Benefit Plan documents summaries of material modifications and amendments thereto; other material employee communications, (Bii) trust instruments the Form 5500 Annual Report (including all schedules and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) other attachments for the most recent summary plan description; three years), (Fiii) forms filed with the PBGC (all related trust agreements, insurance contracts or other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; funding agreements which implement such plans and (Iiv) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Scheduleall contracts relating to each such plan, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provideragreements, as defined under Section 409A of the Codeinsurance contracts, respecting any such tax, interest or penalty under Section 409A of the Code, investment management agreements and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Coderecordkeeping agreements.
Appears in 1 contract
Samples: Purchase Agreement (National Equipment Services Inc)
Employee Benefit Plans. (i) On Section 6.03(m)(i) In the event that any designation of Cardinal’s Disclosure Schedulethe Trustee of this Trust as Beneficiary in any employee-benefit plan in which the Trustor may have an interest shall be ineffectual in whole or in part, Cardinal has set forth a complete and accurate list of all existing bonusthe Trustor specifically requests that the committee, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit or other group having authority to do so under such plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (select the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) Trustee of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under Trust as Beneficiary of such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, plans to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefitsmaximum extent possible. Neither Cardinal nor Under no circumstances shall any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably restricted proceeds be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior i) distributed to or following for the Effective Timebenefit of Trustor's executors or Trustor's Probate Estate or (ii) reasonably be expected used to pay any obligations of Trustor's estate. The term "restricted proceeds" means:
(Aa) entitle any EmployeeAll qualified plans, Consultant or Director to any payment (including severance pay individual retirement accounts, or similar compensation) benefits which are received or receivable by any increase in compensationTrustee hereunder which, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan if paid solely to a beneficiary "other than the Cardinal Stock Plans and except as otherwise provided executor" of the Trustor's gross estate would be excluded from Trustor's gross estate for federal estate tax purposes under Section 2039 of the Internal Revenue Code in this Agreement effect at Trustor's death, or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.for federal estate income tax purposes; or
(ixb) Neither Cardinal nor any All proceeds of its Subsidiaries maintains any compensation plansinsurance on Trustor's life which, programs if paid to a beneficiary other than Trustor's estate, would be exempt from inheritance or arrangements Federal Estate taxes under state or federal law in effect at the payments under which would not reasonably be expected to be deductible as a result time of the limitations under Section 162(m) of the Code and the regulations issued thereunder.Trustor's death; or
(xc) Except as set forth on Section 6.03(m)(x) All other assets transferred into the Trust that if conveyed to the Trustor’s Executor or Estate might increase the amount of Cardinal’s Disclosure Scheduleincome, as a resultinheritance, directly or indirectlyestate, of the transactions contemplated by this Agreement (includingcapital gains, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinalself employment, or any other type of their respective Subsidiaries will tax to any ultimate beneficiaries. The Trustee may elect the mode of payment which, in the Trustee's discretion, appears to be obligated the most advantageous option available to make the Trust and/or its then current income Beneficiaries in terms of income, estate, and inheritance tax, and/or investment return considerations. An election by the Trustee in good faith in the exercise of the discretionary power conferred upon it shall be final and binding upon all persons whomsoever and shall be a payment full acquittance and discharge to an Employee of Cardinal or the Trustee, and the Trustee shall not be liable to any person by reason of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as exercise of such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the futurediscretionary power.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Trust Agreement
Employee Benefit Plans. (ia) On Set forth in Section 6.03(m)(i5.22(a) of Cardinal’s the Seller Disclosure Schedule, Cardinal has set forth Letter is a correct and complete and accurate list of all existing bonuseach “employee benefit plan” (as defined in section 3(3) of ERISA) and any other employee benefit, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchaseemployment, restricted stockretention, stock optionchange in control, severance, welfare and fringe benefit planscompensation, survivor life equity or equity-based pension, welfare, paid time off, vacation, insurance, split dollar fringe, perquisite or other life insurance benefit compensatory plan, employment program, policy, incentive, agreement or severance agreements arrangement that any Acquired Company maintains, is a party to, contributes to, participates in or has any liability with respect to the benefit of its current and all similar practices, policies and arrangements in which any current former employees or former employee consultants (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Employee Benefit Plans”). Except as required by the terms Seller has made available to Purchaser a correct and complete copy of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and each Employee Benefit Plan.
(iib) Each Compensation All Employee Benefit Plans comply with, and Benefit Plan has have been operated administered in form and administered in operation in all material respects in accordance with its terms and with with, all applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunderrequirements of Law, and all filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and neither Seller nor any other applicable law have been timely made. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code its Affiliates has received a favorable determination letter any notice from any Governmental Authority questioning or has applied for a favorable determination letter in compliance with the Code challenging such compliance.
(including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(ac) of the Code) from the Internal Revenue Service There are no actions, suits or claims (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits) pending or, to the Knowledge of Seller, threatened involving the Employee Benefit Plans or the assets thereof. Neither Cardinal nor any of its Subsidiaries has engaged in a transactionThere are no audits, reviews, inquiries or proceedings pending, or omitted to take the Knowledge of Seller, threatened by any action, Governmental Authority with respect to any Compensation Employee Benefit Plan.
(d) No Acquired Company (i) currently participates in, has any obligation to contribute to or has any liability under any multiemployer plan (as such term is defined in section 3(37) of ERISA) or (ii) maintains or contributes to or participates in any pension plan subject to Title IV of ERISA or the minimum funding requirements of section 302 of ERISA or Section 412 of the Code. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Employee Benefit Plans by an Acquired Company have been timely made or accrued.
(e) Each Employee Benefit 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 is so qualified and either: (i) has obtained a currently effective favorable determination notification, advisory and/or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS covering all legislation for which the IRS will currently issue such a letter, and no amendment to such Employee Benefit Plan has been adopted since the date of such letter covering such Employee Benefit Plan that would reasonably be expected to subject Cardinal adversely affect such favorable determination; or any of its Subsidiaries to (ii) still has a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable remaining period of time in which to apply for or receive such letter and to make any such transaction expired as of the date hereofamendments necessary to obtain a favorable determination.
(iiif) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there There is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Employee Benefit Plan, other than benefits mandated by Section 4980B of contract, plan or arrangement that, individually or collectively, would (i) give rise to the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on Acquired Company’s payment as a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation result of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which amount that would not reasonably be expected to be deductible as a result by the Acquired Company by reason of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section section 280G of the CodeCode or (ii) accelerate the time of payment, or increase the amount of compensation, due to any individual by an Acquired Company. None of the Employee Benefit Plans otherwise limits or restricts the Acquired Company’s ability to terminate the employment of any employee for any reason with no liability (other than payment of unused accrued paid time off), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xig) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that No Acquired Company is a SERP or non-qualified deferred compensation plan sponsor of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and an Employee Benefit Plan that is an operational failure under Section 409A “employee benefit plan” defined in section 3(3) of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeERISA.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(iSchedule 4.16(a) of Cardinal’s the Disclosure Schedule, Cardinal has set Schedules sets forth a complete and accurate list of all existing bonusidentifying each Employee Pension Benefit Plan including Multiemployer Plans that the Company has sponsored, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment to which the Company has contributed or severance agreements and all similar practices, policies and arrangements in which any current or former employee undertaken the obligation to contribute (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Pension Plans”). Except as required by the terms of this Agreement or as Previously Disclosed set forth on Section 6.03(m)(iSchedule 4.16(a) of Cardinal’s the Disclosure ScheduleSchedules, neither Cardinal the Company nor any of its Subsidiaries respective ERISA Affiliates has any commitment sponsored or contributed to create any additional Compensation and or been required to contribute to the Pension Plans.
(b) Schedule 4.16(b) of the Disclosure Schedules sets forth a list identifying each Employee Welfare Benefit Plan including Multiemployer Plans relating to employee health and welfare benefits that the Company has sponsored, or to modify which the Company has contributed or undertaken the obligation to contribute (the “Welfare Plans”).
(c) With respect to each Employee Benefit Plan, the Company has delivered or has made available to Buyer complete copies, if applicable, of (i) all plan documents (or, if not written, a summary of material plan terms), including, trust agreement, insurance contracts or other funding vehicles and all amendments thereto, and (ii) all summaries and summary plan descriptions, including any summary of material modifications.
(d) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company relating to, or change in employee participation or coverage under, any existing Compensation Employee Benefit Plan that would increase materially the expense of maintaining such Employee Benefit Plan above the level of expense incurred in respect of such Employee Benefit Plan for the most recent plan year with respect to Employee Benefit Plans, excepting only rate increases that were effective on April 1, 2020, as set forth on Schedule 4.16(d) of the Disclosure Schedules.
(e) Each Employee Benefit Plan has been maintained in material compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Benefit Plan.
(f) With respect to each Employee Benefit Plan, there are no pending or, to the Knowledge of the Company, threatened (i) Claims by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, other than ordinary and usual claims for benefits by participants or beneficiaries, or (ii) Each Compensation and Benefit Claims by any Governmental Authority.
(g) No Welfare Plan has been operated and administered in all material respects in accordance with its terms and with applicable lawprovides benefits, including, but without limitation, any severance or other post-employment benefit, salary continuation, termination, death, disability, or health or medical benefits (whether or not limited toinsured), ERISAlife insurance or similar benefit with respect to current or former employees (or their spouses or dependents) of the Company beyond their retirement or other termination of service other than (i) coverage mandated by applicable Law, (ii) disability insurance benefits payable in connection with an appropriate claim, and (iii) benefits, the Codefull cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Company has complied with, and satisfied, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit requirements of COBRA with respect to each Welfare Plan that is an “employee pension benefit subject to the requirements of COBRA. Each Welfare Plan which is a group health plan” , within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(299832(a) of the Code, has complied with and satisfied the applicable requirements of Sections 9801 and 9802 of the Code.
(yi) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(nSchedule 4.16(i) of the Code Disclosure Schedules contains a list identifying each employment, severance or pursuant similar contract, arrangement or policy and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers’ compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Welfare Plan or a Pension Plan and (ii) has been entered into or maintained, as the case may be, by the Company and any employee or former employee of the Company. Such contracts, plans and arrangements are referred to ERISAcollectively as the “Benefit Arrangements.” True and complete copies or descriptions of the Benefit Arrangements have been made available to Buyer. Each Benefit Arrangement has been maintained in material compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(vj) Neither Cardinal nor No payment or benefit provided pursuant to any agreement, between the Company and any “service provider” (as such term is defined in Section 409A of its Subsidiaries has any obligations the Code and the Treasury Regulations and Internal Revenue Service guidance thereunder), will or may provide for the deferral of compensation subject to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B 409A of the Code that is not in compliance with Section 409A of the Code. Each stock option and stock appreciation right, if any, was granted with an exercise price that was not less than the fair market value of the underlying common stock on the date the option or right was granted based upon a reasonable valuation method. The execution and each such Compensation delivery of this Agreement and Benefit Plan the consummation of the Transaction will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any agreement that will or may result in any payment of deferred compensation which will not be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any in compliance with Section 409A of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basisthe Code if timely paid in accordance with the terms of the agreement.
(vik) Cardinal and its Subsidiaries do There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company that, individually or in aggregate, could give rise to the payment by the Company, directly or indirectly, of any amount that would not maintain any Compensation and Benefit Plans covering foreign Employeesbe deductible pursuant to the terms of Section 280G of the Code.
(viil) With The Company is not a party to, or otherwise obligated under, any Employee Benefit Plan or other agreement, that provides for a gross-up, make-whole or other additional payment with respect to each Compensation any Taxes, including those imposed by Sections 409A and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies 4999 of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)Code.
(viiim) [Reserved]
(n) The Company and each applicable Employee Benefit Plan and Benefit Arrangement are in compliance in all material respects with the Patient Protection and Affordable Care Act, including compliance with all filing and reporting requirements, all waiting periods and the offering of affordable health insurance coverage compliant with the Patient Protection and Affordable Care Act to all employees and consultants who meet the definition of a full time employee under the Patient Protection and Affordable Care Act. No excise tax or penalty under the Patient Protection and Affordable Care Act is outstanding, has accrued, or will become due with respect to any period prior to the Closing.
(o) Except as set forth on Section 6.03(m)(viiiSchedule 4.16(o) of Cardinal’s the Disclosure ScheduleSchedules, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal neither Buyer nor any of its Subsidiaries maintains Affiliates (including the Company upon consummation of this Transaction) will have any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of Liability for any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Employment Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeArrangement after Closing.
Appears in 1 contract
Samples: Equity Purchase Agreement (Vireo Health International, Inc.)
Employee Benefit Plans. (i) On Section 6.03(m)(iExcept as set forth in Paragraph 6(u) of Cardinal’s the Disclosure Schedule, Cardinal has there is no “employee benefit plan” established or maintained, or to which contributions have been made by Seller, as such term is defined in ERISA. Except as set forth and identified as such in Paragraph 6(u) of the Disclosure Schedule, none of any such plans is a complete defined benefit plan. None of any such plans is a multiemployer plan as contemplated by XXXXX. No ERISA Affiliate has or in the past has had any obligation with respect to a defined benefit plan (other than a plan specifically identified as such in Paragraph 6(u) of the Disclosure Schedule) or a multiemployer plan. Seller has provided all required notification under COBRA to all former employees of Seller who have terminated employment with Seller on or prior to the Closing Date and accurate experienced a COBRA qualifying event, and to all other parties who became “qualified beneficiaries” under COBRA with respect to any group health plans maintained for the Business Employees, and is providing COBRA coverage to all former employees and other qualified beneficiaries of Seller who elected COBRA coverage within the time period specified by COBRA and the regulations promulgated thereunder. A list of all existing bonussuch individuals is set forth in Paragraph 6(u) of the Disclosure Schedule. Except for benefits required by COBRA, incentiveno benefit plan set forth in Paragraph 6(u) of the Disclosure Schedule, deferred compensation, pension, retirement, profit-sharing, thrift, savings, and no other employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment program or arrangement maintained, contributed to or participated in by the Seller or any ERISA Affiliate of the Seller, provides for welfare (such as health, medical or life insurance) benefits for any individual who is not an employee or for any employee after his or her termination of employment. Except as set forth in Paragraph 6(u) of the Disclosure Schedule, the consummation of the Transaction will not entitle any individual to severance agreements pay, and all similar practiceswill not accelerate the time of payment or vesting, policies and arrangements or increase the amount of compensation or benefits due to any individual. Each employee benefit plan, program or arrangement (whether or not subject to ERISA) in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries Seller participates or to which any such Employees, Consultants it contributes or Directors under which Business Employees are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment are expected to create any additional Compensation and Benefit Plan or be entitled to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan benefits has been operated and administered in all material respects in accordance with its terms and applicable Law. Seller and any applicable employee benefit plan have at all times complied in all material respects with all provisions of the Patient Protection and Affordable Care Act, to the extent applicable, including the employer shared responsibility provisions relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to “full-time” employees (as those terms are defined in Section 4980H of the Code and related regulations), and the payment of the applicable lawpenalty, including, but and the applicable employer information reporting provisions under Section 6055 of the Code and Section 6056 of the Code and related regulations. Seller is not limited reasonably expected to incur or be subject to, ERISAany material Tax, penalty or other liability that may be imposed under the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, Patient Protection and all filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Affordable Care Act and any other applicable law the Health Care and Education Reconciliation Act of 2010, as amended. The requirements of COBRA have been timely made. Each Compensation and met in all material respects with respect to each Employee Benefit Plan (including each employee benefit plan that is an “employee pension welfare benefit plan” within the meaning of Section 3(2plan maintained by an ERISA Affiliate) of ERISA (a “Pension Plan”) and that is intended subject to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letterCOBRA. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal Xxxxxxx Xxxxxxxxx nor any of its Subsidiaries has engaged in a transactionAffiliates shall incur, or omitted to take any action, with respect to any Compensation and Benefit Plan that would could not reasonably be expected to subject Cardinal incur, by operation of law or otherwise, any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintainedliability whatsoever with respect to, or maintained within the last six yearsin any way related to, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement plan, program or arrangement (whether or not subject to ERISA) in which Cardinal Seller or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any an ERISA Affiliate (x) of Seller participates or has providedparticipated, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation part of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Asset Purchase Agreement or otherwise (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plansprovided, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as however, that nothing herein affects Xxxxxxxxx’x reimbursement obligations expressly set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi12(b) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of periods after the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective TimeClosing Date), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (a) Section 4.10(a) of the Greyhound Disclosure Schedule lists (i) On all stock option, stock purchase and restricted stock, or equity incentive plans, programs or arrangements, all material “employee benefit plans” (as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete ERISA) (whether or not subject to ERISA) and accurate list of all existing material bonus, incentive, deferred compensation, pensionchange of control, retention, retiree medical or life insurance, supplemental retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe redundancy, termination or other benefit plans, survivor life insuranceprograms or arrangements, split dollar to which Greyhound or other life insurance any Greyhound Subsidiary is a party, with respect to which Greyhound or any Greyhound Subsidiary has any obligation or which are maintained, contributed to or sponsored by Greyhound or any Greyhound Subsidiary for the benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which of any current or former employee, officer or director of Greyhound or any Greyhound Subsidiary, (ii) each employment agreement that is a Material Greyhound Contract, (iii) each employee benefit plan for which Greyhound or any Greyhound Subsidiary could incur liability under Section 4069 of ERISA in the event such plan has been or were to be terminated, and (iv) any plan in respect of which Greyhound or any Greyhound Subsidiary could incur liability under Section 4212(c) of ERISA (collectively, the “EmployeesGreyhound Plans”); provided that it is hereby agreed and understood that a Greyhound Plan that is not subject to United States Law (a “Non-U.S. Greyhound Plan”) shall not be deemed to be material for purposes of this Section 4.10 to the extent that Greyhound or any Greyhound Subsidiary employs or engages less than 50 individuals in the relevant national jurisdiction, unless such Greyhound Plan (x) provides for retirement, pension or termination benefits on a defined benefit basis or benefits in connection with a change of control or sale of Greyhound or any Greyhound Subsidiary or (y) is an employment agreement that is a Material Greyhound Contract. Greyhound has made available to Greyhound a true and complete copy of (i) such Greyhound Plans, (ii) the most recently filed IRS Form 5500, if any, (iii) the most recent summary plan description for each Greyhound Plan for which a summary plan description is required by applicable law, (iv) the most recently received IRS determination letter or opinion letter, if any, issued by the IRS with respect to any Greyhound Plan that is intended to qualify under Section 401(a) of the Code, and (v) the most recently prepared actuarial report or financial statement, if any, relating to a Greyhound Plan. Neither Greyhound nor any Greyhound Subsidiary has any express or implied commitment (i) to create, incur liability with respect to or cause to exist any other employee benefit plan, program or arrangement, (ii) to enter into any contract or agreement to provide compensation or benefits to any individual, or (iii) to modify, change or terminate any Greyhound Plan, other than with respect to a modification, change or termination (x) required by ERISA or the Code or (y) implemented in the ordinary course of business consistent with past practice in connection with any plan year or cycle that commences on January 1, 2010.
(b) Neither Greyhound nor any ERISA Affiliate of Greyhound maintains, sponsors, participates in or contributes or has any liability with respect to a Multiemployer Plan, Multiple Employer Plan, or an employee benefit plan subject to Title IV of ERISA. None of the Greyhound Plans provides for or promises retiree medical, disability or life insurance benefits to any current or former consultant (the “Consultants”) employee, officer or current or former director (the “Directors”) of Cardinal Greyhound or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party Greyhound Subsidiary (the “Compensation and Benefit Plans”other than coverage mandated by applicable law). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(iic) Each Compensation Greyhound Plan is now and Benefit Plan always has been operated and administered in all material respects in accordance with its terms and with the requirements of all applicable lawLaws, including, but without limitation, ERISA and the Code. Greyhound and the Greyhound Subsidiaries have, in all material respects, performed all obligations required to be performed by them under, are not limited in any material respect in default under or in violation of, and have no knowledge of any default or violation by any party to, ERISAany Greyhound Plan. No Action is pending or, to the Codeknowledge of Greyhound, threatened with respect to any Greyhound Plan (other than claims for benefits in the Securities Actordinary course) and, to the Exchange Actknowledge of Greyhound, the Age Discrimination in Employment Act, no fact or event exists that could reasonably be expected to give rise to any regulations or rules promulgated thereunder, and all 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. such Action.
(d) Each Compensation and Benefit Greyhound Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received with respect to the cycle applicable to such Greyhound Plan pursuant to Revenue Procedure 2005-66 (as amended) a favorable determination letter from the IRS covering all of the provisions applicable to the Greyhound Plan for which determination letters are currently available or has applied for a favorable determination an IRS prototype opinion letter in compliance with the Code (including a determination exists upon which Greyhound is permitted to rely, that the related trust under such Compensation and Benefit Greyhound Plan is exempt from tax under Section 501(aso qualified.
(e) of the Code) from the Internal Revenue Service (“IRS”) All contributions, premiums or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely payments required to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, be made with respect to any Compensation Greyhound Plan have been made on or before their due dates. Greyhound and Benefit Plan that would reasonably be expected each Greyhound Subsidiary have made all social security contributions (including contributions to subject Cardinal all mandatory provident fund schemes) in respect of or any on behalf of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofall their current and former employees in accordance with applicable Law.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(vf) Neither Cardinal the execution of this Agreement nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by hereby will (either alone or in connection with the termination of employment or service of any officer, employee, director, independent contractor or consultant following, or in connection with the transactions contemplated hereby) (i) entitle any current or former employee, independent contractor or consultant of Greyhound or any Greyhound Subsidiary to any increase in severance pay upon any termination of employment after the date of this Agreement Agreement, (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 Greyhound Plans, or (iii) limit or restrict the right of Greyhound or any Greyhound Subsidiary or, after the consummation of the transactions contemplated hereby, Parent, to merge, amend or terminate any of the Greyhound Plans. None of the Greyhound Plans in effect immediately prior to the Closing would not, directly result separately or indirectly in the aggregate (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result hereby) in the payment of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in within the meaning of Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xig) As Each Greyhound Plan or any other arrangement of the Effective DateGreyhound that is, there are no supplemental employment retirement plans (eachor was, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any was administered in reasonable, good faith compliance with the requirements of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code through December 31, 2008, and all Greyhound Plans subject to Section 409A of the Code that provide payment after December 31, 2008 and were in existence on such date have been amended (if applicable) to comply with the requirements of the final regulations under Section 409A. Neither Greyhound nor any Greyhound Subsidiary (i) has an obligation to gross-up, indemnify or otherwise reimburse any person for any tax incurred by such person pursuant to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest (ii) has elected to or penalty under is required to defer payment of amounts from a foreign entity which will be subject to the provisions of Section 409A 457A of the Code, and if or (iii) has any correction procedure authorized under obligation to gross-up, indemnify or otherwise reimburse any IRS guidance with respect person for any tax incurred by such person pursuant to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A 280G of the Code.
(h) All directors, officers and management employees of Greyhound and the Greyhound Subsidiaries are under written obligation to Greyhound and the Greyhound Subsidiaries to maintain in confidence all confidential or proprietary information acquired by them in the course of their employment and to assign to Greyhound and the Greyhound Subsidiaries all inventions made by them within the scope of their employment during such employment and for a reasonable period thereafter.
(i) In addition to the foregoing, with respect to each Non-U.S. Greyhound Plan:
(i) none of the Non-U.S. Greyhound Plans provide for retirement, pension or termination benefits on a defined benefit basis;
(ii) there has been no amendment to, written interpretation of or announcement (whether or not written) by Greyhound or any Greyhound Subsidiary relating to, or change in employee participation or coverage under, any Non-U.S. Greyhound Plan that would materially increase the expense of maintaining such Non-U.S. Greyhound Plan above the level of expense incurred in respect thereof for the most recent fiscal year ended prior to the date hereof; and
(iii) each Non-U.S. Greyhound Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(i3.14 of the SpectraSite Disclosure Letter sets forth a list as of the date hereof of all "employee pension benefit plans" (as defined in Section 3(2) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974, Cardinal as amended ("ERISA")) under which SpectraSite or any SpectraSite Subsidiaries has set forth any liability (sometimes referred to individually as a complete "SPECTRASITE PENSION PLAN" and accurate list collectively as the "SPECTRASITE PENSION PLANS"), all "employee welfare benefit plans" (as defined in Section 3(1) of all existing bonusERISA) under which SpectraSite or any SpectraSite Subsidiaries has any liability (sometimes referred to individually as a "SPECTRASITE WELFARE PLAN" and collectively as the "SPECTRASITE WELFARE PLANS"), incentiveand each vacation or paid time off, deferred severance, termination, change in control, employment, incentive compensation, pension, retirement, profit-profit sharing, thriftstock option, savings, employee stock ownership, stock bonusfringe benefit, stock purchase, restricted stock ownership, phantom stock, stock optiondeferred compensation plans, severance, welfare arrangements or agreements and other employee fringe benefit plansplans or arrangements maintained, survivor life insurancecontributed to or required to be maintained or contributed to by SpectraSite or any SpectraSite Subsidiaries for the benefit of any present or former officers, split dollar employees, directors or independent contractors of SpectraSite or any of the SpectraSite Subsidiaries and under which SpectraSite or any SpectraSite Subsidiaries has any actual or contingent material liabilities (each of the foregoing being referred to individually as a "SPECTRASITE BENEFIT PLAN" and each of the foregoing together with the SpectraSite Pension Plan and SpectraSite Welfare Plans being referred to collectively as the "SPECTRASITE BENEFIT PLANS").
(b) SpectraSite has made available to ATC true and complete copies of (1) each SpectraSite Benefit Plan (or, in the case of any unwritten SpectraSite Benefit Plan, a summary of the material provisions of such plan) in effect on the date hereof, (2) the most recent report on Form 5500 filed with the Internal Revenue Service with respect to each SpectraSite Benefit Plan in effect on the date hereof to the extent any such report was required by applicable Law, (3) the most recent summary plan description for each SpectraSite Benefit Plan for which such a summary plan description is required by applicable Law and (4) each currently effective trust agreement or other life insurance funding vehicle relating to any SpectraSite Benefit Plan. Neither SpectraSite nor any SpectraSite Subsidiaries has maintained, contributed to or been obligated to maintain or contribute to, or has any actual or contingent liability under, any benefit planplan that is subject to Title IV of ERISA or Section 412 of the Code or is otherwise a plan described in Section 3(40) of ERISA or a plan described in Section 413 of the Code. Other than severance benefits provided under a SpectraSite Benefit Plan, no SpectraSite Welfare Plan provides benefits to, or on behalf of, any former employee after the termination of employment or severance agreements and all similar practices, policies and arrangements in which any current or except (1) where the full cost of such benefit is borne entirely by the former employee (the “Employees”or his eligible dependents or beneficiaries), current (2) where plan benefits are payable through a trust, the fair market value of the assets of which equal or former consultant exceed the present value of the liabilities of such plan or (3) where the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as benefit is required by Section 4980B of the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit PlanCode.
(iic) Each Compensation and Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each SpectraSite Benefit Plan in effect on the date hereof has been operated and administered in all material respects in accordance with its terms terms, and SpectraSite and each of the SpectraSite Subsidiaries and all SpectraSite Benefit Plans are in compliance with the applicable law, including, but not limited to, provisions of ERISA, the CodeCode and other applicable Laws as to the SpectraSite Benefit Plans; (ii) all contributions, including participant contributions, required under each SpectraSite Benefit Plan have been made in full on a timely and proper basis pursuant to the Securities Actterms of such plans and applicable Law; (iii) with respect to the SpectraSite Benefit Plans, individually and in the Exchange Actaggregate, the Age Discrimination no event has occurred, and there exists no condition or set of circumstances, including claims, audits, and investigations, in Employment Act, connection with which SpectraSite or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by of the SpectraSite Subsidiaries could reasonably be expected to become subject to liability under ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and Code or any other applicable law have been timely made. Each Compensation and Law; (iv) the amounts payable pursuant to the terms of a SpectraSite Benefit Plan that is an “employee pension benefit plan” within the meaning of will not be subject to any income tax deduction limit under Section 3(2162(m) of ERISA the Code or any other applicable Law; (a “v) each SpectraSite Pension Plan”) and Plan that is intended to be comply with the provisions of Section 401(a) of the Code has been the subject of a determination letter from the Internal Revenue Service to the effect that such SpectraSite Pension Plan currently is qualified and exempt from income taxes under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with and the Code (including a determination that the related trust under relating to such Compensation and Benefit Plan plan is exempt from tax income taxes under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect no such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending orhas been revoked and, to the knowledge of CardinalSpectraSite, threatened legal action, suit or claim relating revocation has not been threatened; (vi) SpectraSite has made available to ATC a copy of the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, most recent determination letter received with respect to each SpectraSite Pension Plan for which such a letter has been issued, as well as a copy of any Compensation and pending application for a determination letter; (vii) there are no understandings, agreements or undertakings, written or oral, with any person (other than the express terms of any SpectraSite Benefit Plan Plans) that would (pursuant to any such understandings, agreements or undertakings) reasonably be expected to subject Cardinal result in any liabilities if any SpectraSite Benefit Plan was amended or terminated on or at any time after the Effective Time or that would prevent any unilateral action by SpectraSite (or, after the Effective Time, ATC) to effect such amendment or termination; (viii) no present or former officers, employees, directors or independent contractors of SpectraSite or any of its SpectraSite Subsidiaries will be entitled to a material tax any additional benefits or penalty imposed by either Section 4975 any acceleration of the Code time of payment, funding or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period vesting of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and SpectraSite Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on as a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation result of the transactions contemplated by this Agreement would notAgreement; (ix) neither the execution and delivery of this Agreement, directly or indirectly (including, without limitation, as a result nor the consummation of any transaction contemplated by this Agreement (alone or in conjunction with a termination of employment prior to or following the Effective Timeemployment) reasonably be expected to will (A) entitle trigger any Employee, Consultant funding (through a grantor trust or Director to otherwise) of any payment (including severance pay compensation or similar compensation) benefits or any increase in compensation, (B) result in the vesting any violation or acceleration breach of, or a default (with or without notice or lapse of any benefits time or both) under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and SpectraSite Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
; (x) Except other than as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, in any SpectraSite Benefit Plans or as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will may be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or avoid any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined adverse tax consequence under Section 409A of the Code, respecting since December 31, 2004, there has not been any adoption or amendment in any material respect by SpectraSite or any SpectraSite Subsidiaries of any SpectraSite Benefit Plan or any agreement (whether or not legally binding) to adopt or amend any such taxplan; and (xi) only officers, interest directors and employees of SpectraSite or penalty any SpectraSite Subsidiaries are eligible for compensation or benefits under Section 409A the terms of the Codeeach SpectraSite Benefit Plan, and if any correction procedure authorized under any IRS guidance with respect to Section 409A each individual who is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated classified by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest SpectraSite or any penalty by any service provider (SpectraSite Subsidiary as defined under Section 409A of the Code) to Cardinal an "employee" or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codean "independent contractor" is properly so classified.
Appears in 1 contract
Samples: Merger Agreement (Spectrasite Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal Tammcorp has set forth in Section 3.13(a)(i) of the Tammcorp Disclosure Schedule a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “"Tammcorp Employees”"), current or former consultant (the “"Tammcorp Consultants”") or current or former director (the “"Tammcorp Directors”") of Cardinal Tammcorp or any of its Subsidiaries participates or to which any such Tammcorp Employees, Tammcorp Consultants or Tammcorp Directors are a party (the “"Tammcorp Compensation and Benefit Plans”"). Except as required by the terms of this Agreement or as Previously Disclosed on set forth in Section 6.03(m)(i3.13(a)(ii) of Cardinal’s the Tammcorp Disclosure Schedule, neither Cardinal Tammcorp nor any of its Subsidiaries has any commitment to create any additional Tammcorp Compensation and Benefit Plan or to modify or change any existing Tammcorp Compensation and Benefit Plan.
(iib) Each Tammcorp Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, Code or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act Code and any other applicable law have been timely made. Each Tammcorp Compensation and Benefit Plan that which is an “"employee pension benefit plan” " within the meaning of Section 3(2) of ERISA (a “"Tammcorp Pension Plan”") and that which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Tammcorp Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) IRS or the Tammcorp Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal Tammcorp is not aware of any circumstances that which could adversely affect such qualification or that which are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of CardinalTammcorp, threatened legal action, suit or claim relating to the Tammcorp Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal Tammcorp nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Tammcorp Compensation and Benefit Plan that would reasonably be expected to subject Cardinal Tammcorp or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iiic) No Compensation and Benefit Plans currently maintained, liability (other than for payment of premiums to the PBGC which have been made or maintained within the last six years, will be made on a timely basis) under Title IV of ERISA has been or is expected to be incurred by Cardinal Tammcorp 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 any single-employer plan of any entity (an “a "Tammcorp ERISA Affiliate”") that which is considered one employer with Cardinal Tammcorp under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is (a "Tammcorp ERISA Affiliate Plan"). None of Tammcorp, any of its Subsidiaries or was subject any Tammcorp ERISA Affiliate has contributed, or has been obligated to Title IV of ERISA or is or was contribute, to a multiemployer plan under Subtitle E of Title IV of ERISAERISA at any time since December 31, 2012. 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 Tammcorp Compensation and Benefit Plan or by any Tammcorp ERISA Affiliate Plan within the 12-month period ending on the date hereof, and no such notice will be required to be filed as a result of the transactions contemplated by this Agreement. The PBGC has not instituted proceedings to terminate any Tammcorp Pension Plan or Tammcorp ERISA Affiliate Plan and, to Tammcorp's knowledge, no condition exists that presents a material risk that such proceedings will be instituted. To the knowledge of CardinalTammcorp, there is no pending investigation or enforcement action by the PBGC, the DOL or the IRS or any other governmental agency with respect to any Tammcorp Compensation and Benefit Plan. Under each Tammcorp Pension Plan and Tammcorp ERISA Affiliate Plan, as of the date of the most recent actuarial valuation performed prior to the date of this Agreement, the actuarially determined present value of all "benefit liabilities," within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in such actuarial valuation of such Tammcorp Pension Plan or Tammcorp ERISA Affiliate Plan), did not exceed the then current value of the assets of such Tammcorp Pension Plan or Tammcorp ERISA Affiliate Plan and since such date there has been neither an adverse change in the financial condition of such Tammcorp Pension Plan or Tammcorp ERISA Affiliate Plan nor any amendment or other change to such Tammcorp Pension Plan or Tammcorp ERISA Affiliate Plan that would increase the amount of benefits thereunder which reasonably could be expected to change such result.
(ivd) All contributions required to be made under the terms of any Tammcorp Compensation and Benefit Plan or Tammcorp ERISA Affiliate Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal Tammcorp or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statementsTammcorp's Financial Statements. Neither any Tammcorp Pension Plan nor any Tammcorp ERISA Affiliate Plan has an "accumulated funding deficiency" (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA and all required payments to the PBGC with respect to each Tammcorp Pension Plan or Tammcorp ERISA Affiliate Plan have been made on or before their due dates. None of CardinalTammcorp, any of its Subsidiaries or any Tammcorp ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Tammcorp Pension Plan or to any Tammcorp ERISA Affiliate Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(ve) Neither Cardinal Tammcorp nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or other retiree death or other benefits under any Tammcorp Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Tammcorp Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Tammcorp Employees by Cardinal Tammcorp or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Tammcorp Employees retiree health or life insurance or other retiree death or other benefits on a permanent basis.
(vif) Cardinal Tammcorp and its Subsidiaries do not maintain any Tammcorp Compensation and Benefit Plans covering foreign Tammcorp Employees.
(viig) With respect to each Tammcorp Compensation and Benefit Plan, if applicable, Cardinal Tammcorp has provided or made available to UnitedSouthern Missouri, true and complete copies of existing: (Ai) Tammcorp Compensation and Benefit Plan documents and amendments thereto; (Bii) trust instruments and insurance contracts; (Ciii) two most recent Forms 5500 filed with the IRS; (Div) most recent actuarial report and financial statement; (Ev) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (Gvi) most recent determination or opinion letter issued by the IRS; (Hvii) any Form 5310 or Form 5330 filed with the IRS; and (Iviii) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiih) Except as set forth on in Section 6.03(m)(viii3.13(h) of Cardinal’s the Tammcorp Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (Ai) entitle any Employee, Consultant or Tammcorp Director to any payment (including severance pay or similar compensation) or any increase in compensation, (Bii) result in the vesting or acceleration of any benefits under any Tammcorp Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (Ciii) result in any material increase in benefits payable under any Tammcorp Compensation and Benefit Plan.
(ixi) Neither Cardinal Tammcorp nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(xj) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United Southern Missouri nor CardinalTammcorp, or nor any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal Tammcorp or any of its Subsidiaries that would be characterized as an “"excess parachute payment” " to an individual who is a “"disqualified individual” " (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xik) As of the Effective Date, except as Previously Disclosed, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”SERPs) between Cardinal Tammcorp, any of its Subsidiaries and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Scheduletheir employees.
(xiil) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal Neither Tammcorp nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Tammcorp Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal Tammcorp or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal Tammcorp or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal Tammcorp nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal Tammcorp or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Tammcorp Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set Schedule 5.14 hereto sets forth a true and complete and accurate list of all existing each compensation, benefit, bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonusincentive compensation, stock purchase, restricted stock, stock option, severanceemployment, welfare and fringe benefit plansconsulting, survivor life severance or termination pay, group insurance, split dollar death benefit, cafeteria, dependent care, hospitalization or other life insurance benefit medical, dental, vision, life, supplemental unemployment benefits, vacation pay, welfare, profitsharing, pension or retirement plan, employment program, agreement or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunderarrangement, and all filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any each other applicable law have been timely made. Each Compensation and Benefit Plan that is an “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA ERISA, and the rules and regulations promulgated thereunder), that is maintained or contributed to for the benefit of any employee, consultant, officer, or director of either Seller (a an “Pension Employee Benefit Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof).
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(viib) With respect to each Compensation and Employee Benefit Plan, if applicable, Cardinal each Seller has provided or heretofore made available to United, Purchasers true and complete copies of existing: (A) Compensation and each Employee Benefit Plan documents and (including all amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; Summary Plan Description, if required under ERISA with respect to each such Employee Benefit Plan. Except as disclosed on Schedule 5.14, no Employee Benefit Plan is a “multiemployer plan” (Fas defined in Section 3(37) forms filed of ERISA), and neither Seller has liability (including current or potential withdrawal liability) with respect to any multiemployer plan.
(c) All Employee Benefit Plans in which the PBGC Employees of either Seller participate comply in all respects with all applicable Laws and regulations. All required employer or employee contributions, premiums, and Taxes under or with respect to the Employee Benefit Plans due to be made or paid as of the date hereof have been made. The respective fund or funds established under the Employee Benefit Plans are funded in accordance with all applicable laws. There has been no violation of any applicable provision of ERISA with respect to any Employee Benefit Plan and there are no actual or potential claims or actions (other than claims for minimum payments); (Gbenefits in the normal course) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director relating to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and such Employee Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth Hollywood Media will provide to Purchaser within 30 days following the Closing Date a complete and accurate list of all existing bonusplans, incentiveprograms, deferred compensationContracts, policies and practices providing benefits to any current or former employee of the Companies, or any beneficiary or dependent thereof, sponsored or maintained by Hollywood Media or any ERISA Affiliate, to which Hollywood Media or any ERISA Affiliate contributes or is obligated to contribute, or under which Hollywood Media or any ERISA Affiliate has or may have any liability, including any pension, retirement, profit-sharing, thrift, savings, employee profit sharing, retirement, bonus, incentive, health, dental, death, accident, disability, stock ownershippurchase, stock option, stock appreciation, stock bonus, stock purchaseexecutive or deferred compensation, restricted stockhospitalization, stock option, “parachute,” severance, vacation, sick leave, fringe or welfare and fringe benefits, any employment or consulting Contracts, “golden parachutes,” collective bargaining agreements, “employee benefit plans” (as defined in Section 3(3) of ERISA), survivor life insuranceemployee manuals, split dollar and written or other life insurance benefit planbinding oral statements of policies, practices or understandings relating to employment or severance agreements and all similar practices(collectively, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Employee Plans/Agreements”). Except as required by the terms Hollywood Media has made available to Purchaser complete and correct copies of this all Employee Plans/Agreements and documents relating thereto. No Employee Plan/Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a “multiemployer plan under Subtitle E of Title IV plan” (as defined in Section 4001 of ERISA. To the knowledge of Cardinal), there is no pending investigation and neither Hollywood Media nor any current or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect prior ERISA Affiliate has ever contributed nor been obligated to contribute to any Compensation and Benefit Plansuch plan or multiemployer plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(viib) With respect to each Compensation and Benefit Employee Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing/Agreement: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (Ei) the most recent summary plan descriptionEmployee Plan/Agreement conforms in form and operation to all applicable Laws and Orders, except for instances of noncompliance where neither the costs and penalties associated with noncompliance nor the costs associated with rectifying the noncompliance, individually or in the aggregate, would have a Material Adverse Effect; and (Fii) forms filed with the PBGC there is no Legal Proceeding pending (other than routine claims for minimum payments); (Gbenefits being reviewed pursuant to the Employee Plan/Agreement’s internal claim and appeal procedures) most recent determination or, to Hollywood Media’s knowledge, threatened, with respect to the Employee Plan/Agreement or opinion letter issued against the assets of the Employee Plan/Agreement of the Companies, nor is there any investigation or audit by the IRS; (H) , United States Department of Labor or any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests)other Governmental Body.
(viiic) Except as set forth on expressly required under Section 6.03(m)(viii4980B of the Code and Sections 601 through 609 of ERISA, no Employee Plan/Agreement provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees of the Companies beyond their retirement or other termination of service, and the Companies have no obligation to provide or contribute toward the cost of such coverage or benefits.
(d) of Cardinal’s Disclosure Schedule, the The consummation of the transactions contemplated hereby will not: (i) entitle any current or former employee of the Companies to severance pay, unemployment compensation or any other payment; or (ii) accelerate the time of payment or vesting or increase the amount of compensation due to any current or former employee of the Companies. Hollywood Media does not have any announced plan or legally binding commitment to create any additional Employee Plans/Agreements or to amend or modify any existing Employee Plans/Agreements, except to the extent necessary to comply with any requirements imposed by this any Laws.
(e) No Employee Plan/Agreement would nothas any restrictions against termination or modification, directly either by its terms or indirectly due to any written or oral communications to any employees of the Companies.
(f) The Companies have no liabilities or obligations relating to any period ending on or prior to the Closing Date in respect of the employees of the Companies, for: (i) unpaid compensation, salaries, wages, disability payments and other payroll items (including, without limitation, as a result bonus, incentive or deferred compensation, vacation or other paid leave); (ii) unpaid contributions, costs and expenses to or in respect of any Employee Plan/Agreement; and (iii) severance or other termination benefits relating to, resulting from or arising in respect of any termination of employment occurring on or prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit PlanClosing Date.
(ixg) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code Hollywood Media and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) Companies are in compliance with the requirements of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider all “nonqualified deferred compensation plans” (as defined under in Section 409A of the Code) to Cardinal maintained by Hollywood Media, or any of its Subsidiaries under Section 409A of the Code or Companies, to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of which any of the Compensation and Benefit Plans, Companies or any actions taken or omitted thereunder, violate Section 409A employee of the CodeCompanies is a party.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(i) Schedule 3.1.26 lists and describes each of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements the Employee Benefit Plans in which Employees and/or retired or former employees of the Corporation participate. Copies of each written Employee Benefit Plan, as amended to the date hereof, as well as summary descriptions of the Employee Benefit Plans provided to Employees and former employees of the Corporation have been provided to or made available to the Purchaser. All copies and summary descriptions of each written Employee Benefit Plan completely and accurately describe, in all material respects, the benefits provided therein. In the case of each unwritten Employee Benefit Plan, a written description thereof which accurately describes, in all material respects, all provisions of such Employee Benefit Plan, as amended to the date hereof, has been provided to or made available to the Purchaser. There have been no promised improvements, increases or changes to the benefits provided under any Employee Benefit Plan. None of the other Persons listed on Schedule 3.1.25, including contractual parties participate in any Employee Benefit Plan, and no former independent contractor or contractual party is eligible to participate in or receive benefits under any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Employee Benefit Plan.
(iib) The Corporation does not have nor has it ever had, any registered pension plan under which the Employees accrue pension benefits or under which benefits are provided to retired or former employees or contractual parties or any supplemental retirement plans or top-up plans to provide supplemental retirement income to any of its Employees or other person listed in Schedule 3.1.25. Further, the Corporation is not participating nor has it ever participated in a multi-employer pension plan or a multi-employer health and welfare trust. The Corporation has no current or past obligation to make contributions to a multi-employer pension plan or a multi-employer health and welfare trust.
(c) Each Compensation Employee Benefit Plan is, and has been, established, registered (where desirable or required), administered and invested, in compliance with the terms of such Employee Benefit Plan and every agreement (past or present) relating to the benefits provided under each such Employee Benefit Plan and all Applicable Law. Where required by Applicable Law or pursuant to the Employee Benefit Plans, each Employee Benefit Plan has been operated fully funded or fully insured.
(d) All employer payments, contributions or premiums required to be remitted or paid to or in respect of each Employee Benefit Plan have been remitted and administered paid in all material respects a timely fashion in accordance with its the terms thereof, and with applicable lawno Taxes, includingpenalties or fees are owing or exigible under or in respect of any Employee Benefit Plan. To the knowledge of the Vendors, but not limited to, ERISA, there are no outstanding defaults or violations thereunder by the Code, Corporation or the Securities Act, the Exchange Act, the Age Discrimination in Employment Actadministrator of any Employee Benefit Plan, or by the agent of any regulations of them, which could result in or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and give rise to any other applicable law have been timely made. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) liability of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code Corporation.
(including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(ae) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending orinvestigation, to the knowledge of Cardinalexamination, threatened legal proceeding, action, suit or claim relating to the Compensation and Benefit Plans (other than routine claims for benefits. Neither Cardinal nor ) pending or threatened involving any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Employee Benefit Plan that would or its assets, and, to the knowledge of the Vendors, no facts exist which presently or after notice or lapse of time or both could reasonably be expected to subject Cardinal give rise to any such investigation, examination, proceeding, action, suit or claim (other than routine claims for benefits).
(f) All employee data necessary to administer each Employee Benefit Plan in respect of the Employees and retired or former employees of the Corporation and their beneficiaries is in the possession of the Corporation, and is complete and accurate, in all material respects, and in a form which is sufficient for the proper administration of the Employee Benefit Plans in respect of such Employees, retired or former employees and their beneficiaries.
(g) None of the Employee Benefit Plans provides post-employment or post-retirement benefits to or in respect of the Employees or any of its Subsidiaries to a material tax retired or penalty imposed by either Section 4975 former employees of the Code Corporation or Section 502 of ERISA, assuming for purposes of Section 4975 to or in respect of the Code beneficiaries of such Employees and retired or former employees.
(h) None of the Employee Benefit Plans requires or permits a retroactive increase in premiums or payments. All Employee Benefit Plans which provide for health and welfare benefits are fully insured.
(i) There exists no liability in connection with any former benefit plan relating to the Employees or retired or former employees of the Corporation and their beneficiaries that has terminated and all procedures for termination of each such former benefit plan has been properly followed in accordance with the taxable period terms of such former benefit plan and Applicable Law.
(j) Neither the execution of this Agreement nor the consummation of any of the transactions contemplated in this Agreement will:
(i) result in any payment (including, without limitation, bonus, golden parachute, retirement, severance, unemployment compensation, or other benefit or enhanced benefit) becoming payable under any Employee Benefit Plan;
(ii) increase any benefits otherwise payable under any Employee Benefit Plan;
(iii) entitle any Employee or other person listed in Schedule 3.1.25 to any job security or similar benefit or any enhanced benefits; or
(iv) result in the acceleration of the time of payment payable under any Employee Benefit Plan, or result in any Employee Benefit Plan becoming terminable other than at the sole and unfettered discretion of the Corporation.
(k) Any data provided by the Corporation to the Purchaser in connection with the Employees or other person listed in Schedule 3.1.25 and retired or former employees or contractual parties of the Corporation and their beneficiaries, including the demographic data and information relating to such transaction expired Persons, was true, accurate and complete on the date that it was provided to the Purchaser and remains true, accurate and complete in all material respects as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Share Purchase Agreement (Pioneer Power Solutions, Inc.)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete All benefit and accurate 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, severance, welfare and fringe benefit compensation plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practicescontracts, policies and or arrangements in which any covering current or former employee employees of Assabet (the “"Assabet Employees”), ") and current or former consultant (the “Consultants”) trustees or current or former director (the “Directors”) directors of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, Assabet including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “"employee pension benefit plan” plans" within the meaning of Section 3(23(3) of ERISA, and deferred compensation, incentive and bonus plans (the "Assabet Benefit Plans"), are disclosed in Section 6.15(a) of Assabet's Disclosure Schedules. True and complete copies of all Assabet Benefit Plans including, but not limited to, any trust instruments and insurance contracts forming a part of any Assabet Benefit Plans and all amendments thereto have been provided or made available to Westborough.
(b) All Assabet Benefit Plans are in substantial compliance with ERISA (in all material respects. Each Assabet Benefit Plan which is a “Pension Plan”) Plan and that which is intended to be qualified under Section 401(a) of the Code Code, has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterService, and Cardinal Assabet is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing such favorable determination letter or in not receiving a favorable determination letterthe loss of the qualification of such Pension Plan under Section 401(a) of the Code. There is no material pending or, to the knowledge of CardinalAssabet's knowledge, threatened legal action, suit or claim litigation relating to the Compensation and Assabet Benefit Plans other than routine claims for benefitsPlans. Neither Cardinal nor any of its Subsidiaries Assabet has not engaged in a transaction, or omitted to take any action, transaction with respect to any Compensation and Assabet Benefit Plan that would reasonably be expected to or Pension Plan that, assuming the taxable period of such transaction expired as of the date of this Agreement, could subject Cardinal or any of its Subsidiaries Assabet to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 502(i) of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofERISA in an amount which would be material.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Assabet Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s the financial statementsstatements of AVB included in the Assabet Reports.
(d) Neither Assabet, nor any entity which is an ERISA Affiliate, has incurred any liability under Title IV of ERISA which will not have been paid in full prior to the Closing. None Neither Assabet nor any ERISA Affiliate currently maintains any Pension Plan subject to Code Section 412 or ERISA Section 302, and Assabet has received approval from the Pension Benefit Guaranty Corporation with regard to the termination of Cardinalits defined benefit Pension Plan. Neither Assabet nor any ERISA Affiliate has ever maintained a Multiemployer Plan.
(e) There are no pending or, to the knowledge of Assabet, threatened claims by or on behalf of any Assabet Benefit Plans, or by or on behalf of any individual participants or beneficiaries of any Assabet Benefit Plans, alleging any breach of fiduciary duty on the part of Assabet or any of its Subsidiaries officers, directors or employees under ERISA or any ERISA Affiliate (x) has providedother applicable regulations, or would reasonably claiming benefit payments for which Assabet may be expected liable (other than those made in the ordinary operation of such plans), nor is there, to be required the knowledge of Assabet, any basis for such claim. The Assabet Benefit Plans are not the subject of any pending (or to providethe knowledge of Assabet, security any threatened) investigation or audit by the Internal Revenue Service, the Department of Labor or the Pension Benefit Guaranty Corporation.
(f) With respect to any Pension Assabet Benefit Plan pursuant that is a Welfare Plan and except as disclosed in Section 6.15(f) of Assabet's Disclosure Schedules, (i) each Welfare Plan for which contributions are claimed by Assabet as deductions under any provision of the Code is in material compliance with all applicable requirements pertaining to such deduction, (ii) with respect to any welfare benefit fund (within the meaning of Section 401(a)(29419 of the Code) related to a Welfare Plan, there is no disqualified benefit (within the meaning of Section 4976(b) of the Code) that would result in the imposition of a tax under Section 4976(a) of the Code, and (yiii) has taken any action, or omitted to take any action, Assabet Benefit Plan that has resulted, or would reasonably be expected to result, in is a group health plan (within the imposition meaning of a lien under Section 412(n4980B(g)(2) of the Code or pursuant to ERISA.
(vCode) Neither Cardinal nor any complies, and in each and every case has complied, with all of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by the applicable material requirements of Section 4980B of the Code, ERISA, Title XXII of the Public Health Service Act and each such Compensation the Social Security Act, and Benefit Plan (iv) all Welfare Plans may be amended or terminated at any time on or after the Closing Date without incurring any liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vig) Cardinal Assabet has no obligations for retiree health and its Subsidiaries do not maintain life benefits under any Compensation and Assabet Benefit Plans covering foreign EmployeesPlan, 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 laws of any state or locality.
(viih) With respect to each Compensation and Benefit PlanNeither the execution of this Agreement, if applicablenor shareholder approval of this Agreement, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the nor consummation of the transactions contemplated by this Agreement would not, directly Transactions will (i) entitle any employees of Assabet to severance pay or indirectly (including, without limitation, as a result of any increase in severance pay upon any termination of employment prior to after the date of this Agreement, (ii) accelerate the time of payment or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant vesting or Director to trigger any payment or funding (including severance pay through a grantor trust or similar compensationotherwise) of compensation or benefits under, increase the amount payable or trigger any increase in compensationother material obligation pursuant to, any of the Assabet Benefit Plans, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (Ciii) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor breach or violation of, or a default under, any of its Subsidiaries maintains the Assabet Benefit Plans, (iv) result in any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess a "parachute payment” " to an individual who is a “"disqualified individual” (," as such those terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take (v) result in any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or payment that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect nondeductible pursuant to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code162(m) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (Westborough Financial Services Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(iEach employee of UCB and UCB Subsidiaries at the Effective Time (herein "Employee") shall become an employee of Cardinal’s Disclosure ScheduleSNC or a SNC Subsidiary immediately following the Effective Time, Cardinal has set forth a complete upon substantially the same terms and accurate list conditions as in effect immediately preceding the Effective Time. Each Employee, as an employee of all existing bonus, SNC or one of the SNC Subsidiaries shall be eligible to receive bonus or incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare group hospitalization, medical, life, disability and fringe benefit plansother benefits comparable to those provided to similarly situated employees of SNC or the SNC Subsidiary. For purposes of administering all plans and benefits of SNC or a SNC Subsidiary, survivor life insurance, split dollar service with UCB and the UCB Subsidiaries by each Employee shall be deemed to be service with SNC or other life insurance benefit plan, employment or severance agreements the SNC Subsidiaries for participation and all similar practices, policies and arrangements in which any current or former employee vesting purposes only (the “Employees”), current or former consultant subject to paragraph (the “Consultants”) or current or former director (the “Directors”c) of Cardinal or any this Section 5.12).
(b) SNC shall cause the 401(k) plan of its Subsidiaries participates or UCB to which any be merged with the 401(k) plan maintained by SNC and the SNC Subsidiaries, and the account balances of the Employees who are participants in the UCB plan shall be transferred to the accounts of such EmployeesEmployees under the SNC 401(k) plan. Following such merger and transfer, Consultants or Directors are a party (the “Compensation such accounts shall be governed and Benefit Plans”). Except as required controlled by the terms of this Agreement or the SNC 401(k) plan as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment in effect from time to create any additional Compensation time (and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect SNC's right to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each terminate such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) testsplan).
(viiic) Except as set forth on Section 6.03(m)(viii) The parties anticipate that SNC shall cause the tax qualified defined benefit pension plan of Cardinal’s Disclosure ScheduleUCB to be merged with the tax qualified defined benefit plan of SNC. If such merger occurs, the consummation SNC pension plan will provide future benefit accruals under the SNC pension plan for the Employees which will not be less than the benefits which would be accrued under the "fresh start formula without wear away" as described in Treasury Regulation ss. 1.401(a)(4)- 13(c)(4)(i) (that is, the accrued benefit of each Employee who becomes a participant in the SNC pension plan incident to such plan merger will equal the sum of the transactions contemplated by this Agreement would notbenefit accrued to the Effective Time under the UCB pension plan plus the future benefit accrued under the SNC pension plan). For purposes of applying the SNC pension plan following such merger, directly or indirectly (includingservice with UCB of an Employee shall be deemed to be service with SNC for the purposes of determining eligibility and vesting, without limitation, as a result but not for the purpose of any termination of employment prior to or determining benefit accruals following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ixd) Neither Cardinal nor any of its Subsidiaries maintains any compensation plansUCB's Long Term Incentive Plan, programs or arrangements the payments under which would not reasonably Director Deferred Compensation Plan and Triad Bank Long Term Incentive Plan shall be expected to be deductible frozen as a result of the limitations under Section 162(m) Effective Time, and SNC shall assume as of the Code and the regulations issued thereunder.
(x) Except Effective Time all obligations under such plans as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or then accrued. SNC shall following the Effective Time), neither United nor Cardinal, or any of Time administer such plans in accordance with their respective Subsidiaries will be obligated terms, except that no further rights or benefits shall accrue to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code participants and no provision further employees or directors shall be permitted to participate in either or both of any such plans. SNC shall assume and continue in effect the UCB Supplemental Retirement Plan for the benefit of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codecurrent participants therein.
Appears in 1 contract
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Each Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan of NHP has been operated administered in compliance, in all material respects, with its terms, and administered is in compliance in all material respects in accordance with its terms and with applicable lawlaws, rules and regulations, (including, but without limitation, provisions relating to funding, filing, termination, reporting, disclosure and continuation coverage obligations pursuant to Title V of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA")). No Benefit Plan of NHP has been the subject of a "reportable event" (as defined in Section 4043 of ERISA) (other than a reportable event for which the 30 day notice requirement has been waived) and there have not limited tobeen any non-exempt "prohibited transactions" (as described in Section 4975 of the Code or in Part 4 of Subtitle B of Title I of ERISA) with respect to any Benefit Plan of NHP. There are no proceedings, ERISAsuits or material claims (other than routine claims for benefits) pending or, to the knowledge of NHP, threatened with respect to any Benefit Plan of NHP, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Actassets of any trust thereunder, or the Benefit Plan sponsor or the Benefit Plan administrator with respect to the design or operation of any regulations or rules promulgated thereunder, and all 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 madeBenefit Plan of NHP. Each Compensation and Benefit Plan that of NHP which is an “employee pension benefit plan” intended to be "qualified" within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related is so qualified, and any trust under created pursuant to any such Compensation and Benefit Plan of NHP is exempt from Federal income tax under Section 501(a) of the Code) from Code and the Internal Revenue Service (“IRS”) or the Compensation and IRS has issued each such Benefit Plan uses a prototype or volume submitter plan that favorable determination letter which is the subject of an IRS opinion or advisory letter, and Cardinal currently applicable. NHP is not aware of any circumstances that could adversely affect such qualification circumstance or that are likely to result in event which would jeopardize the revocation tax-qualified status of any existing favorable determination letter Benefit Plan of NHP or in not receiving a favorable determination letterthe tax-exempt status of any related trust, or would cause the imposition of any material liability, penalty or tax under ERISA or the Code with respect to any Benefit Plan of NHP. There is no No material pending or, liabilities to the knowledge or on behalf of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans participants (other than routine claims for benefits. Neither Cardinal nor any ), the IRS, the United States Department of its Subsidiaries has engaged in a transactionLabor, the Pension Benefit Guaranty Corporation or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal other Person or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would are reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible incurred as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result termination of any termination Benefit Plan of employment prior to NHP or following the Effective Time)otherwise that have not been satisfied in full or properly accrued on NHP's balance sheet as at December 31, neither United nor Cardinal1996, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed included in the futureNHP SEC Reports.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (NHP Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal Neither First Federal Bancorp nor any Neither First Federal Subsidiary has set forth a complete and accurate list of all existing any commitment to create any additional bonus, incentive, deferred compensation, supplemental executive retirement plans, 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 (including paid time off policies and other material benefit policies and procedures), fringe benefit plans, survivor life insuranceemployment, split dollar consulting, settlement and change in control agreements or any other life insurance material benefit planpractice, employment or severance agreements policy and all similar practices, policies and arrangements in which any current or former employee arrangement (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “First Federal Bancorp Compensation and Benefit Plans”). Except as required by the terms of this Agreement ) or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Scheduleto materially modify, neither Cardinal nor change or renew any of its Subsidiaries has any commitment to create any additional existing First Federal Bancorp Compensation and Benefit Plan or to modify (any modification or change any existing that increases the cost of such plans would be deemed material), except as required to maintain the qualified status thereof. First Federal Bancorp has made available to Alpena Banking Corporation true and correct copies of the First Federal Bancorp Compensation and Benefit PlanPlans.
(iib) Each To the Knowledge of First Federal Bancorp, each First Federal Bancorp Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, COBRA, HIPAA and any regulations or rules promulgated thereunder, and all material filings, disclosures and notices required by ERISA, the CodeIRC, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, COBRA and all filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act HIPAA and any other applicable law have been timely mademade or any interest, fines, penalties or other impositions for late filings have been paid in full. Each First Federal Bancorp Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code IRC has received a favorable determination letter from the IRS or has applied for is entitled to rely on a favorable determination letter in compliance with issued to the Code (including sponsor of a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) master or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterplan, and Cardinal First Federal Bancorp is not aware of any circumstances that could adversely affect such qualification or that are reasonably likely to result in the revocation of any existing favorable determination letter or in not receiving a such favorable determination letter. There is no material pending or, to the knowledge Knowledge of CardinalFirst Federal Bancorp, threatened legal action, suit or claim relating to any of the First Federal Bancorp Compensation and Benefit Plans (other than routine claims for benefits). Neither Cardinal First Federal Bancorp nor any of its Subsidiaries First Federal Subsidiary has engaged in a transaction, or omitted to take any action, with respect to any First Federal Bancorp Compensation and Benefit Plan that would reasonably be expected to subject Cardinal First Federal Bancorp or any of its Subsidiaries First Federal Subsidiary to a material unpaid tax or penalty imposed by either Section 4975 Chapter 43 of the Code IRC or Section Sections 409 or 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iiic) No liability under Title IV of ERISA has been incurred by First Federal Bancorp or any First Federal Subsidiary with respect to any First Federal Bancorp Compensation and Benefit Plans Plan that is subject to Title IV of ERISA (“First Federal Bancorp Defined Benefit Plan”) currently maintained, or formerly maintained within the last six years, by Cardinal or any of its Subsidiaries First Federal Bancorp or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal First Federal Bancorp under Section 4001(a)(144001(b)(1) of ERISA or Section 414(b414 of the IRC (a “First Federal Bancorp 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 First Federal Bancorp or any First Federal Bancorp ERISA Affiliate of incurring a liability under such Title. No First Federal Bancorp Defined Benefit Plan had an “accumulated funding deficiency” (cas 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 Previously Disclosed, the fair market value of the assets of each First Federal Bancorp Defined Benefit Plan exceeds the present value of the “benefit liabilities” (as defined in Section 4001(a)(16) of ERISA) under such First Federal Bancorp Defined Benefit Plan as of the Code is or was subject end of the most recent plan year with respect to Title IV the respective First Federal Bancorp Defined Benefit Plan ending prior to the date hereof, calculated on the basis of ERISA or is or was a multiemployer plan under Subtitle E the actuarial assumptions used in the most recent actuarial valuation for such First Federal Bancorp Defined Benefit Plan as of Title IV of ERISA. To the knowledge of Cardinal, date hereof; there is no not currently pending investigation or enforcement action by with the PBGC, the DOL or IRS or PBGC any other governmental agency filing with respect to any reportable event under Section 4043 of ERISA nor has any reportable event occurred as to which a filing is required and has not been made (other than as might be required with respect to this Agreement and the transactions contemplated thereby). Neither First Federal Bancorp nor any First Federal Bancorp ERISA Affiliate has contributed to any “multiemployer plan,” as defined in Section 3(37) of ERISA. Neither First Federal Bancorp, nor any First Federal Bancorp ERISA Affiliate, nor any First Federal Bancorp Compensation and Benefit Plan, including any First Federal Bancorp Defined Benefit Plan, nor any trust created thereunder, nor any trustee or administrator thereof, has engaged in a transaction in connection with which First Federal Bancorp, any First Federal Bancorp ERISA Affiliate, and any First Federal Bancorp Compensation and Benefit Plan, including any First Federal Bancorp Defined Benefit Plan or any such trust or any trustee or administrator thereof, could reasonably be expected to be subject to either a civil liability or penalty pursuant to Section 409, 502(i) or 502(l) of ERISA or a tax imposed pursuant to Chapter 43 of the IRC.
(ivd) All material contributions required to be made under the terms of any First Federal Bancorp Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Codemade, and (y) all anticipated contributions and funding obligations are accrued on First Federal Bancorp’s consolidated financial statements to the extent required by GAAP. First Federal Bancorp and each First Federal Subsidiary has taken any action, or omitted expensed and accrued as a liability the present value of future benefits under each applicable First Federal Bancorp Compensation and Benefit Plan for financial reporting purposes to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAextent required by GAAP.
(ve) Neither Cardinal Except as Previously Disclosed, neither First Federal Bancorp nor any of its Subsidiaries First Federal Subsidiary has any obligations to provide retiree health and health, life insurance, retiree long-term care insurance or disability insurance, or any retiree death or other benefits under any First Federal Bancorp Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there COBRA. There has been no communication to Employees employees by Cardinal First Federal Bancorp or any of its Subsidiaries First Federal Subsidiary that would reasonably be expected to promise or guarantee such Employees employees retiree health health, life insurance, or life insurance disability insurance, or any retiree death or other benefits on a permanent basisbenefits.
(vif) Cardinal First Federal Bancorp and its Subsidiaries do not maintain any First Federal Bancorp Corporation Compensation and Benefit Plans covering foreign Employeesemployees who are not United States residents.
(viig) With respect to each First Federal Bancorp Compensation and Benefit Plan, if applicable, Cardinal First Federal Bancorp has provided or made available to United, true and complete Alpena Banking Corporation copies of existingthe: (A) Compensation and Benefit Plan documents and amendments thereto; (B) plan documents, trust instruments and insurance contracts; (B) three most recent IRS Forms 5500; (C) two three most recent Forms 5500 filed with the IRSactuarial reports and financial statements; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (GE) most recent determination or opinion letter issued by the IRS; (HF) any Form 5310 or Form 5330 filed with the IRSIRS within the last three years; and (IG) most recent nondiscrimination tests performed under ERISA and the Code IRC (including 401(k) and 401(m) tests); and (H) PBGC Form 500 and 501 filings, along with the Notice of Intent to Terminate, ERISA Section 204(h) Notice, Notice of Plan Benefits, and all other documentation related to the termination of a First Federal Bancorp Pension Plan.
(viiih) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the The consummation of the transactions contemplated by this Agreement would Merger or the Bank Merger will not, directly or indirectly (including, without limitation, as a result of any termination of employment or service at any time prior to or following the Effective Time) reasonably be expected to (A) entitle any Employeeemployee, Consultant consultant or Director director to any payment or benefit (including severance pay pay, change in control benefit, or similar compensation) or any increase in compensation, (B) entitle any employee or independent contractor to terminate any plan, agreement or arrangement without cause and continue to accrue future benefits thereunder, or result in the vesting or acceleration of any benefits under any First Federal Bancorp Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or Plan, (C) result in any material increase in benefits payable under any First Federal Bancorp Compensation and Benefit Plan, or (D) entitle any current or former employee, director or independent contractor of First Federal Bancorp or any First Federal Subsidiary to any actual or deemed payment (or benefit) which could constitute a “parachute payment” (as such term is defined in Section 280G of the IRC).
(ixi) Neither Cardinal First Federal Bancorp nor any of its Subsidiaries First Federal Subsidiary maintains any compensation plans, programs or arrangements the payments under which would not any payment is reasonably be expected likely to be deductible become non-deductible, in whole or in part, for tax reporting purposes as a result of the limitations under Section 162(m) of the Code IRC and the regulations issued thereunder.
(xj) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective DatePreviously Disclosed, there are no supplemental employment retirement plans (eachstock options, a “SERP”) stock appreciation or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and similar rights, earned dividends or dividend equivalents, or shares of restricted stock, outstanding under any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any First Federal Bancorp Compensation and Benefit Plan that is an operational failure under Section 409A Plans or otherwise as of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codedate hereof.
Appears in 1 contract
Samples: Merger Agreement (First Federal of Northern Michigan Bancorp, Inc.)
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, Each employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or plan as to which Borrower may have any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered liability complies in all material respects in accordance with its terms all applicable requirements of law and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunderregulations, and all filings(i) no Reportable Event nor Prohibited Transaction (as defined in ERISA) has occurred with respect to any such plan, disclosures and notices required by ERISA(ii) Borrower has not withdrawn from any such plan or initiated steps to do so, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law (iii) no steps have been timely madetaken to terminate any such plan, and (iv) there are no unfunded liabilities other than those previously disclosed to Lender in writing. Each Compensation and Benefit Plan that INVESTMENT COMPANY ACT. Borrower is not an “employee pension benefit plan” "investment company" or a company "controlled" by an "investment company", within the meaning of Section 3(2) the Investment Company Act of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter1940, and Cardinal as amended. PUBLIC UTILITY HOLDING COMPANY ACT. Borrower is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction"holding company", or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any a "subsidiary company" of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained"holding company", or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition "affiliate" of a lien under Section 412(n) "holding company" or of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any a "subsidiary company" of its Subsidiaries has any obligations to provide retiree health and life insurancea "holding company", retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart Ethe Public Utility Holding Company Act of 1935, part Ias amended. REGULATIONS G, subchapter JT AND U. Borrower is not engaged principally, chapter 1or as one of its important activities, subtitle A in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations G, T and U of the Code that are subject to claims Board of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, Governors of the transactions contemplated by this Agreement (including, without limitation, as a result Federal Reserve System). LOCATION OF BORROWER'S OFFICES AND RECORDS. Borrower's place of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any actionbusiness, or omitted to take any actionBorrower's Chief executive office, with respect to if Borrower has more than one place of business, is located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000. Unless Borrower has designated otherwise in writing this location is also the office or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of offices where Borrower keeps its records concerning the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeCollateral.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(i) 4.19 of Cardinal’s the Disclosure Schedule, Cardinal has set Schedule sets forth a correct and complete and accurate list of all existing bonusTBO Employee Benefit Plans. No TBO Employee Benefit Plan is subject to Title IV of ERISA, incentiveor Section 412 of the Code, deferred compensationis or has been subject to Sections 4063 or 4064 of ERISA, pension, retirement, profitor is a multi-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, employer welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements arrangement as defined in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”Section 3(40) of Cardinal ERISA. Neither TBO nor any ERISA Affiliate has any obligation or Liability, contingent or otherwise, under Title IV of ERISA with respect to any “pension plan” as defined in Section 3(2) of ERISA. Neither TBO nor any of it ERISA Affiliates has ever participated in and has never been required to contribute to any “multiemployer plan,” as defined in Sections 3(37)(A) and 4001(a)(3) of ERISA and Section 414(f) of the Code or any “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code. No TBO Employee Benefit Plan provides for, nor does TBO or any of its Subsidiaries participates have any Liability for post-employment life insurance or health benefit coverage for any person, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and at the expense of such person. The Acquired Entities have no Liability with respect to which any such Employeesplan, Consultants arrangement or Directors are a party (practice of the “Compensation and type described in this Section 4.19(a) other than the TBO Employee Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed Plans set forth on Section 6.03(m)(i) 4.19 of Cardinal’s the Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(iib) Each Compensation and The TBO Employee Benefit Plan has Plans have been operated and administered maintained in all material respects in accordance with its their terms and with applicable law, including, but not limited to, all provisions of ERISA, the CodeCode (including rules and regulations thereunder) and other applicable federal and state Laws and regulations.
(c) There are no pending actions, claims or lawsuits that have been asserted or instituted against any TBO Employee Benefit Plan, the Securities ActAcquired Entities in connection with TBO Employee Benefit Plan, the Exchange Actassets of any of the trusts under any TBO Employee Benefit Plan or the sponsor of any TBO Employee Benefit Plan, or, to the Knowledge of TBO, against any fiduciary or administrator of any TBO Employee Benefit Plan with respect to any TBO Employee Benefit Plan (other than routine benefit claims), nor does TBO have any Knowledge of facts that could reasonably be expected to form the basis for any such claim or lawsuit. No audits, proceedings, claims or demands are pending with any Governmental Authority including without limitation, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, Internal Revenue Service and all 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 madeDepartment of Labor. Each Compensation and Benefit Plan that is an No “employee pension benefit planprohibited transaction” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of or the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware breach of any circumstances that could adversely affect such qualification or that are likely duty imposed on “fiduciaries” pursuant to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries ERISA has engaged in a transaction, or omitted to take any action, occurred with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and TBO Employee Benefit Plan.
(d) True and accurate copies of each TBO Employee Benefit Plan documents, together with (to the extent applicable): (i) all current trust agreements, (ii) the three (3) most recent annual reports on Form 5500 and any auditor’s reports, (iii) the three (3) most recent annual financial statements, (iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinalthree (3) most recent annual actuarial reports, any of its Subsidiaries or any ERISA Affiliate (xiv) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Codeall Internal Revenue Service favorable determination letters, and (yv) all current summary plan descriptions and summaries of material modifications for such plans have been furnished to Parent. In the case of any unwritten TBO Employee Benefit Plan, a written description of such plan has taken any action, or omitted been furnished to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAParent.
(ve) Neither Cardinal the execution and delivery of this Agreement nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would notherein (in each case either alone or in conjunction with any other event) will (i) result in any payment becoming due to any current or former employee, directly officer, director or indirectly (including, without limitation, as a result consultant of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensationAcquired Entity, (Bii) increase any benefits otherwise payable under any TBO Employee Benefit Plan, (iii) result in the vesting or acceleration of the time of payment, funding or vesting of any rights with respect to any such benefits under any Compensation and TBO Employee Benefit Plan, (iv) require any contributions or payments to fund, or any security to secure, any obligations under any TBO Employee Benefit Plan, or (v) cause the renewal or extension of the term of any agreement regarding the compensation of any current or former employee, officer, director or consultant of or to the Acquired Entities. Any amount that could be received or has been received (whether in cash or property or the vesting of property) by any employee, officer, director, stockholder or other service provider of the Acquired Entities under any TBO Employee Benefit Plan other than or otherwise, will not (i) fail to be deductible by reason of Section 280G of the Cardinal Stock Plans and except as otherwise provided for in this Agreement Code or (Cii) result in be subject to an excise Tax under Section 4999 of the Code. No Acquired Entity has any material increase in benefits payable indemnity obligation for any Taxes, interest or penalties imposed under Section 4999 of the Code. No TBO Employee Benefit Plan has any Compensation and Benefit Planunfunded Liabilities which are not reflected on the TBO Financial Statements.
(ixf) Neither Cardinal nor With respect to each TBO Employee Benefit Plan intended to qualify under Code Section 401(a) or 403(a), (i) the Internal Revenue Service has issued a favorable determination letter, which has not been revoked, that any of its Subsidiaries maintains any compensation plans, programs such plan is tax-qualified and each trust created thereunder has been determined by the Internal Revenue Service to be exempt from federal income Tax under Code Section 501(a); (ii) nothing has occurred or arrangements will occur through the payments under Closing which would cause the loss of such qualification or exemption or the imposition of any penalty or Tax Liability; (iii) no reportable event (within the meaning of Section 4043 of ERISA) has occurred; (iv) there has been no termination or partial termination of such plan within the meaning of Code Section 411(d)(3); and (v) the present value of all Liabilities under any such plan will not reasonably be expected to be deductible as a result exceed the current fair market value of the limitations under assets of such plan (determined using the actuarial assumption used for the most recent actuarial valuation for such plan).
(g) Each agreement, contract, plan, or other arrangement that is a “nonqualified deferred compensation plan” subject to Section 162(m409A of the Code to which any Acquired Entity is a party (collectively, a “Plan”) complies with and has been maintained in accordance with the requirements of Section 409A(a)(2), (3), and (4) of the Code and any U.S. Department of Treasury or Internal Revenue Service guidance issued thereunder and no amounts under any such Plan is or has been subject to the regulations issued thereunderinterest and additional Tax set forth under Section 409A(a)(1)(B) of the Code. No Acquired Entity has any actual or potential obligation to reimburse or otherwise ‘‘gross-up’’ any person for the interest or additional Tax set forth under Section 409A(a)(1)(B) of the Code.
(xh) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there There are no supplemental employment retirement plans (each, a “SERP”) leased employees or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor independent contractors within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A Section 414(n) of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or who perform services for any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure ScheduleAcquired Entity.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (Tiger Media, Inc.)
Employee Benefit Plans. (ia) On Section 6.03(m)(i4.22 of the CMAC Schedule of Exceptions identifies each "employee benefit plan", as defined in Section 3(3) of Cardinal’s Disclosure ScheduleERISA, Cardinal has set forth a complete each employment, severance or similar contract, plan, arrangement or policy applicable to any director or officer of CMAC and accurate list of all existing bonuseach plan, incentivefund, deferred program, policy, contract, commitment or arrangement, providing for compensation, pension, retirementbonuses, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”benefits), current whether formal or former consultant informal, written or oral, which (the “Consultants”i) is sponsored, maintained, administered or current or former director (the “Directors”) of Cardinal contributed to by CMAC or any of its Subsidiaries participates ERISA Affiliates or to under which any such Employees, Consultants CMAC or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries ERISA Affiliates has any commitment liability and (ii) covers any employee or former employee of CMAC or any of its Subsidiaries. Copies of such plans and arrangements (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof have been furnished or made available to create Amerin together with the most recent annual report (Form 5500 inclxxxxx, if applicable, Schedule B thereto) prepared in connection with any additional Compensation and Benefit Plan or such plan. Such plans are referred to modify or change any existing Compensation and Benefit Plancollectively herein as the "CMAC Employee Plans".
(iib) Each Compensation and Benefit CMAC Employee Plan has been operated and administered maintained in all material respects in accordance compliance with its terms and with applicable lawthe requirements prescribed by any and all statutes, includingorders, rules and regulations (including but not limited to ERISA and the Code) which are applicable to such plan, including without limitation requirements as to contributions, insurance premiums, fiduciary administration, plan operations, employee classification and plan design, except where failure(s) to so comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CMAC.
(c) No CMAC Employee Plan constitutes a Multiemployer Plan, and neither CMAC nor any ERISA Affiliate contributes to, and has ever contributed to or had any other liability with respect to a Multiemployer Plan. No CMAC Employee Plan is maintained in connection with any trust described in Section 501(c)(9) of the Code. The only CMAC Employee Plans that are subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code (the "CMAC Retirement Plans") are identified in Section 4.22 of the CMAC Schedule of Exceptions. As of the CMAC Balance Sheet Date, the fair market value of the assets of each CMAC Retirement Plan (excluding for these purposes any accrued but unpaid contributions) exceeded the present value of all benefits accrued under such CMAC Retirement Plans determined by using the interest rate and actuarial assumptions used for funding purposes in the January 1, 1998 actuarial report. No "accumulated funding deficiency", as defined in Section 412 of the Code, the Securities Acthas been incurred with respect to any CMAC Retirement Plan, the Exchange Actwhether or not waived. CMAC knows of no "reportable event", the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) 4043 of ERISA, and no event described in Section 4041, 4042, 4062 or 4063 of ERISA has occurred in connection with any CMAC Employee Plan, other than a "reportable event" that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CMAC. No condition exists and no event has occurred that could constitute grounds for termination of any CMAC Retirement Plan and neither CMAC nor any of its ERISA Affiliates has incurred any material liability under Title IV of ERISA arising in connection with the termination of, or complete or partial withdrawal from, any plan covered or previously covered by Title IV of ERISA. Nothing done or omitted to be done and no transaction or holding of any asset under or in connection with any CMAC Employee Plan has or will make CMAC or any Subsidiary, any officer or director of CMAC or any Subsidiary subject to any liability under Title I of ERISA or liable for any tax or penalty pursuant to Section 4975 of the Code or Part 4 of Subtitle I of ERISA that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on CMAC.
(a “Pension Plan”d) and that Each CMAC Employee Plan which is intended to be qualified under Section 401(a) of the Code has received been determined by the IRS to be so qualified and has been so qualified during the period from its adoption to date, and each trust forming a favorable determination letter or part thereof has applied for a favorable determination letter in compliance with been determined by the Code (including a determination that the related trust under such Compensation and Benefit Plan is IRS to be exempt from tax under pursuant to Section 501(a) of the Code) from Code and to the Internal Revenue Service (“IRS”) Knowledge of CMAC, nothing has occurred and no facts have arisen since such IRS determination that would jeopardize the tax-qualified status of any such CMAC Employee Plan or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware tax-exempt status of any circumstances that could adversely affect such qualification related trust.
(e) There has been no amendment to, written interpretation or that are likely to result in the revocation of any existing favorable determination letter announcement (whether or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal written) by CMAC or any of its Subsidiaries to a material tax ERISA Affiliates relating to, or penalty imposed by either Section 4975 change in employee participation or coverage under, any CMAC Employee Plan which would increase materially the expense of maintaining such CMAC Employee Plan above the level of the Code or Section 502 of ERISA, assuming expense incurred in respect thereof for purposes of Section 4975 of the Code that fiscal year ended on the taxable period of any such transaction expired as of the date hereofCMAC Balance Sheet Date.
(iiif) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or Neither CMAC nor any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries Subsidiary is a party have been timely made to or have been reflected on Cardinal’s financial statements. None of Cardinal, subject to any of its Subsidiaries union contract or any ERISA Affiliate (x) has providedemployment contract or arrangement providing for annual future compensation of $500,000 or more with any officer, consultant, director or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAemployee.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (Amerin Corp)
Employee Benefit Plans. (a) Except with respect to the PICM Employee Benefit Plans (herein defined) listed on Section 5.17 in the PICM Disclosure Schedule, neither PICM nor any of the PICM Subsidiaries sponsors, maintains or contributes to, or has any ongoing obligation or liability whatsoever with respect to:
(i) On Any employee benefit plan as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure Schedulethe Employee Retirement Income Security Act of 1974, Cardinal has set forth a complete and accurate list of all existing as amended ("ERISA"), or
(ii) Any other program, plan, trust agreement or arrangement for any bonus, incentiveseverance, hospitalization, vacation, sick pay, deferred compensation, pension, profit sharing, retirement, profit-sharing, thrift, payroll savings, employee stock ownership, stock bonusoption, stock purchase, restricted stockgroup insurance, stock optionself insurance, severancedeath benefit, fringe benefit, welfare and or any other employee benefit plan or fringe benefit arrangement of any nature whatsoever including those for the benefit of former employees. (all of such plans, survivor life insuranceprograms, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or being hereafter referred to which any such Employees, Consultants or Directors are a party (the “Compensation and as "PICM Employee Benefit Plans”"). .
(b) PICM has made available to MAI true, correct and complete copies of all PICM Employee Benefit Plans described on Section 5.17 in the PICM Disclosure Schedule, all insurance policies relating thereto and any written materials used by PICM to describe employee benefits to employees of PICM and the PICM Subsidiaries.
(c) Except as required by the terms of this Agreement or as Previously Disclosed described on Section 6.03(m)(i) of Cardinal’s 5.17 in the PICM Disclosure Schedule, neither Cardinal PICM nor any of its the PICM Subsidiaries has any commitment agreement, arrangement, commitment, or understanding, whether legally binding or not, to create any additional Compensation and PICM Employee Benefit Plan or to modify continue, modify, change, or change terminate, in any existing Compensation and material respect, any PICM Employee Benefit Plan.
(iid) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with If permitted and/or required by applicable law, includingPICM and the PICM Subsidiaries have properly submitted all PICM Employee Benefit Plans described on Section 5.17 in the PICM Disclosure Schedule, but not limited to, ERISA, in good faith to meet the applicable requirements of ERISA and/or the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“"IRS”") for its approval within the time prescribed therefor.
(e) PICM has made available to MAI accurate and complete copies of all favorable determination letters from the IRS, the most recent annual return on Form 5500 for
(f) Each actuarial or valuation report which is described in subparagraph (e) above correctly shows the Compensation and value of the assets of each such PICM Employee Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofthereof, the total accrued and vested liabilities, all contributions by PICM and the PICM Subsidiaries, and the assumptions on which the calculations are based.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(viig) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and PICM Employee Benefit Plan described in Section 5.17 in the PICM Disclosure Schedule:
(i) PICM and the PICM Subsidiaries have made all payments required to be made by them to date, have accrued (in accordance with generally accepted accounting principles consistently applied) as of the date hereof all payments due but not yet payable, and will have made on or prior to the Closing Date all payments due as of the Closing Date;
(ii) to the knowledge of PICM, PICM and the PICM Subsidiaries have operated and currently operate such plans in compliance in all material respects with the plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under all applicable laws, including without limitation ERISA and the Code (including 401(kwithout limitation Section 4980B thereof) and 401(mthe regulations thereunder;
(iii) teststo the knowledge of PICM, there has not been any Reportable Event (as defined in Section 4043 of ERISA).;
(iv) to the knowledge of PICM, there has not been any event described in Section 4068 of ERISA;
(v) to the knowledge of PICM, there has not been any material violation of the reporting and disclosure provisions of the Code and ERISA;
(vi) to the knowledge of PICM, there has not been any Prohibited Transaction (as defined in Section 406 of ERISA or Section 4975 of the Code);
(vii) to the knowledge of PICM, there has not been any violation of Sections 404, 406 or 407 of ERISA; and
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of there has not been any termination or partial termination (including any termination or partial termination attributable to the transactions contemplated by this Agreement would Agreement) of such plans.
(h) PICM and the PICM Subsidiaries have no direct or indirect material liability or obligation under any PICM Employee Benefit Plan other than as described in the terms of such PICM Employee Benefit Plans or on Section 5.17 of the PICM Disclosure Schedule.
(i) Except as described on Section 5.17 in the PICM Disclosure Schedule, there are no circumstances arising out of PICM's or any of the PICM Subsidiaries' sponsorship of any PICM Employee Benefit Plan which will result in any direct or indirect material liability, other than liability for contributions, benefit payments, administrative costs and liabilities incurred in the ordinary course of business.
(j) With respect to each PICM Employee Benefit Plan that is subject to Title IV of ERISA, the present value of accrued benefits under such PICM Employee Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by the actuary for such PICM Employee Benefit Plan with respect to such PICM Employee Benefit Plan, did not, directly as of its latest valuation date, exceed the then current value of the assets of such PICM Employee Benefit Plan allocable to such accrued benefits. There are no pending, or indirectly to the best knowledge of PICM, threatened or anticipated claims (includingother than routine claims for benefits and administrative expenses payable in the ordinary course) by, without limitationon behalf of or against any of the PICM Employee Benefit Plans or any trusts related thereto which are, in the reasonable judgment of PICM, likely to have a material adverse effect on PICM and the PICM Subsidiaries taken as a whole.
(k) PICM and the PICM Subsidiaries have not incurred, and will not incur as a result of or in connection with the Mergers, any termination of employment prior liability to or following the Effective Time) reasonably be expected to Pension Benefit Guaranty Corporation (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensationsuccessor thereto), (B) result in the vesting including any liability under Sections 4063 or acceleration 4064 of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit PlanERISA.
(ixl) Neither Cardinal nor any of its PICM and the PICM Subsidiaries maintains any compensation planshave not incurred, programs or arrangements the payments under which would and will not reasonably be expected to be deductible incur as a result of the limitations under Section 162(m) or in connection with either of the Code Mergers, any withdrawal liability, nor have PICM and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure SchedulePICM Subsidiaries had, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, nor will they have as a result of or in connection with either of the Mergers, any termination contingent withdrawal liability, to any Multi-employer Plan under ERISA, as amended by the Multi-employer Pension Plan Amendments Act of employment prior 1980.
(m) Except as described on Section 5.17 in the PICM Disclosure Schedule, there has never been in existence, and there currently does not exist, any PICM Employee Pension Benefit Plan (as defined in Section 3(2) of ERISA) involving PICM or any of the PICM Subsidiaries which is subject to or following the Effective Time), neither United nor Cardinalprovisions of Title IV of ERISA, or any such plan which is subject to the funding requirements of their respective Subsidiaries Section 412 of the Code or Sections 301 et seq. of ERISA.
(n) No event has occurred and no circumstances currently exist which do or will be obligated result in any civil penalty being assessed pursuant to make Section 502 of ERISA, any tax being imposed under Section 4975 of the Code, or any liability for a payment breach of fiduciary or other responsibility under ERISA in connection with any Employee Pension Benefit Plan which has been established, maintained or contributed to an Employee of Cardinal by PICM or any of its the PICM Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is or any other entity or entities which, together with PICM and the PICM Subsidiaries, constitute elements of either a “disqualified individual” controlled group of corporations (as such terms are defined in within the meaning of Section 280G 414(b) of the Code), without regard to whether such payment is reasonable compensation for personal services performed a group of trades or to be performed in the future.
businesses under common control (xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi414(m) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty another arrangement covered by any service provider (as defined under Section 409A of the Code414(o) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (Neither the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Borrower nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.ERISA ---------------------- Affiliate shall
(iia) Each Compensation and Benefit Plan has been operated and administered engage in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” "prohibited transaction" within the meaning of Section 3(2) (S)406 of ERISA or (a “Pension Plan”) and that is intended to be qualified under Section 401(a) S)4975 of the Code IRC which could result in a material liability for the Borrower; ------------------- * Confidential information has received a favorable determination letter or has applied for a favorable determination letter in compliance been omitted and filed separately with the Code Commission. 76
(including a determination that the related trust under b) permit any Guaranteed Pension Plan to incur an "accumulated funding deficiency", as such Compensation and Benefit Plan term is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service defined in (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 S)302 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any whether or not such transaction expired as of the date hereof.deficiency is or may be waived;
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject fail to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect contribute to any Compensation and Benefit Plan.
(iv) All contributions required Guaranteed Pension Plan to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has providedan extent which, or would reasonably be expected to be required to provide, security to terminate any Guaranteed Pension Plan pursuant to Section 401(a)(29) of the Codein a manner which, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, could result in the imposition of a lien under Section 412(n) or encumbrance on the assets of the Code or Borrower pursuant to (S)302(f) or (S)4068 of ERISA.;
(vd) Neither Cardinal nor permit or take any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that action which would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or aggregate benefit liabilities (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within with the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A (S)4001 of ERISA) of all Guaranteed Pension Plans exceeding the value of the Code that are subject aggregate assets of such Plans, disregarding for this purpose the benefit liabilities and assets of any such Plan with assets in excess of benefit liabilities;
(e) fail to claims of creditors, and except as set forth on Section 6.03(m)(ximake when due any required contributions to a Multiemployer Plan;
(f) of Cardinal’s Disclosure Schedule, no withdraw (completely or partially) from any Multiemployer Plan where such grantor trusts are required withdrawal is likely to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as result in a result, directly or indirectly, material liability of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to Borrower or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.an ERISA Affiliate;
(xiig) Except as set forth on Section 6.03(m)(xiiterminate or institute proceedings to terminate, any Guaranteed Pension Plan, where such termination is likely to result in a material liability of the Borrower or an ERISA Affiliate;
(h) of Cardinal’s Disclosure Schedule, neither Cardinal nor make any of its Subsidiaries has made amendment to any agreement, taken any action, or omitted to take any action, Guaranteed Pension Plan with respect to which security is required under (S)307 of ERISA; or
(i) fail to give any and all notices and make all disclosures and governmental filings required under ERISA or as part of any Compensation and Benefit Plan that the IRC where such failure is an operational failure under Section 409A of the Code or that would reasonably be expected likely to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable result in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior material liability to the Effective Time. As a result, directly Borrower or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Codean ERISA Affiliate.
Appears in 1 contract
Samples: Loan Agreement (Omnipoint Corp \De\)
Employee Benefit Plans. (a) SCHEDULE 3.18 contains an accurate and complete list of each Employee Benefit Plan established, maintained, contributed to or to which there is an obligation to contribute to by an Acquired Company (collectively referred to as the "Acquired Companies Employee Benefit Plans"), all employees affected or covered by the Acquired Companies Employee Benefit Plans as of April 25, 2003, itemized by Acquired Company, and all Obligations thereunder. Accurate and complete copies and descriptions of all of the Acquired Companies Employee Benefit Plans have been provided to Buyer. Other than (i) On Section 6.03(m)(ithe Acquired Companies Employee Benefit Plans, including the 401(k) Plan of Cardinal’s Disclosure ScheduleBerkeley (USA) Limited in which the employees of the Acquired Companies participate and to which the Acquired Companies contribute (the "Berkeley Plan"), Cardinal has and (ii) the Stock Option Plan of Parent in which the employees of the Acquired Companies participate, there are no Employee Benefit Plans in which employees of an Acquired Company are eligible for participation or benefits by virtue of their employment by an Acquired Company.
(b) Except as set forth a complete and accurate list of all existing bonuson SCHEDULE 3.18, incentivesince January 1, deferred compensation2000, pensionno Acquired Company has (i) established, retirementmaintained or contributed to (or had the obligation to contribute to) any Employee Benefit Plans, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar (ii) proposed any Employee Benefit Plans which it plans to establish or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates maintain or to which it plans to contribute, or (iii) proposed any such Employees, Consultants or Directors are a party (the “Compensation and changes to any Employee Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit PlanPlans now in effect.
(iic) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all filings, disclosures and notices If permitted and/or required by ERISAapplicable Law, each Acquired Company or ERISA Affiliate has properly submitted all of the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act and any other applicable law have been timely made. Each Compensation and Acquired Companies Employee Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is Plans intended to be qualified under Section 401(a) of the Code has received a favorable to the IRS for its approval within the time prescribed therefor under applicable federal regulations. Favorable letters of determination letter of such tax-qualified status from the IRS are attached to SCHEDULE 3.18.
(d) With respect to the Acquired Companies Employee Benefit Plans, each Acquired Company will have made, on or has applied for a favorable determination letter before the Closing Date, all payments required to be made by it on or before the Closing Date and will have accrued (in compliance accordance with GAAP) as of the Code Closing Date all payments due but not yet payable as of the Closing Date, so there will not have been, nor will there be, any Accumulated Funding Deficiencies (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of as defined in ERISA or the Code) from or waivers of such deficiencies.
(e) Each Acquired Company has delivered to Buyer an accurate and complete copy of the Internal Revenue Service most current Form 5500 and any other form or filing required to be submitted to any Governmental or Regulatory Body with regard to any of the Acquired Companies Employee Benefit Plans and the most current actuarial report with regard to any of the Acquired Companies Employee Benefit Plans.
(“IRS”f) or All of the Compensation and Acquired Companies Employee Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letterPlans are, and Cardinal is not aware have been, operated in full compliance with their provisions and with all applicable Laws including ERISA and the Code and the regulations and rulings thereunder. Each Acquired Company and all fiduciaries of the Acquired Companies Employee Benefit Plans have complied with the provisions of the Acquired Companies Employee Benefit Plans and with all applicable Laws including ERISA and the Code and the regulations and rulings thereunder. There have been no Reportable Events (as defined in ERISA), no events described in Sections 4062, 4063 or 4064 of ERISA, and no termination or partial termination (including any termination or partial termination attributable to this sale) of any circumstances that could adversely affect such qualification of the Acquired Companies Employee Benefit Plans. There would be no Obligation of any Acquired Company under Title IV of ERISA if any of the Acquired Companies Employee Benefit Plans were terminated as of the Closing Date. No Acquired Company has incurred, nor will incur, any withdrawal liability, nor does any Acquired Company have any contingent withdrawal liability, under ERISA to any Multiemployer plan as defined in ERISA. No Acquired Company has incurred any Obligation to the Pension Benefit Guaranty Corporation (or that are likely to any successor thereto).
(g) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment (including any severance, unemployment compensation or golden parachute payment) becoming due from any Acquired Company under any of the Acquired Companies Employee Benefit Plans, (ii) increase any benefits otherwise payable under any of the Acquired Companies Benefit Plans, or (iii) result in the revocation acceleration of the time of payment or vesting of any existing favorable determination letter such benefits to any extent that would or in not receiving a favorable determination lettercould affect an Acquired Company.
(h) There are no pending Proceedings, claims or demands that have been asserted or instituted against any of the Acquired Companies Employee Benefit Plans, the Assets of any of the trusts under such plans, the plan sponsor, the plan administrator or any fiduciary of any such plan (other than routine benefit claims), and, to the best of Seller's and Parent's knowledge, there are no facts which, if true, could reasonably form the basis for any such Proceeding. There is are no material pending investigations or audits of any of the Acquired Companies Employee Benefit Plans, any trusts under such plans, the plan sponsor, the plan administrator or any fiduciary of any such plan that have been instituted or, to the knowledge best of CardinalSeller's and Parent's knowledge, threatened legal actionthreatened, suit or claim relating and, to the Compensation best of Seller's and Benefit Plans other than routine claims Parent's knowledge, there are no facts which could reasonably form the basis for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofinvestigation or audit.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure ScheduleSCHEDULE 3.18, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) no event has occurred nor will occur which will result in any material increase Acquired Company having an Obligation in benefits payable under connection with any Compensation and Employee Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plansPlan established, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedulemaintained, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior contributed to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to which there has been an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount contribute (currently or withhold any amount as includable in income and subject to tax, interest or any penalty previously) by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or ERISA Affiliate (other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Timethan an Acquired Company), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (i) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set Schedule 4.24 sets forth a correct and complete and accurate list of all existing each and every employee benefit plan, including each pension, profit sharing, stock bonus, incentivebonus, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownershipseverance, stock bonusoption or purchase plan, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit planretirement plan or arrangement, employment covering employees of the Company that is sponsored, maintained or severance agreements and all similar practices, policies and arrangements in which any current or former employee contributed to by the Company (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and "Employee Benefit Plans”"). Except as required by with respect to any Employee Benefit Plan which is a "multi-employer plan" within the terms meaning of this Agreement or as Previously Disclosed on Section 6.03(m)(i3(37) of Cardinal’s Disclosure ScheduleERISA ("Multi-Employer Plan"), neither Cardinal nor any the Shareholders have delivered or made available to Buyer complete and accurate copies of its Subsidiaries has any commitment to create any additional Compensation (i) all Employee Benefit Plans and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
all amendments thereto; (ii) Each Compensation the trust instrument or insurance contract, if any, forming a part of the Employee Benefit Plans, and all amendments thereto; (iii) the most recent and preceding year's Internal Revenue Service Form 5500, if any, and all schedules thereto; (iv) the most recent Internal Revenue Service determination or opinion letter, or if no letter has been issued, any pending application to the Internal Revenue Service for a determination letter regarding qualified status; and (v) the summary plan description, if any. Except for errors or omissions as would not be reasonably be expected to have a materially adverse impact on the Company, (i) the Company has complied in all material respects with all of the rules and regulations governing each of the Employee Benefit Plan Plans, including, without limitation, rules and regulations promulgated pursuant to ERISA and the Code, by the Department of Treasury, Department of Labor, and the Pension Benefit Plans Guaranty Corporation and (ii) each of the Employee Benefit Plans (excluding any Multi-Employer Plan) has been operated and administered in all material respects in accordance with its terms provisions and in all material respects is in compliance with applicable lawsuch rules and regulations. Neither the Company nor any Employee Benefit Plans (excluding any Multi-Employer Plan) or any fiduciaries thereof have engaged in any prohibited transaction, including, but not limited to, ERISA, as that term is defined in Section 406 of ERISA or Section 4975 of the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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 nor have been timely made. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take them committed any action, material breach of fiduciary responsibility with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. (ia) On Seller has made available to Buyer a list of and copies of each material “employee benefit plan”, as defined in Section 6.03(m)(i3(3) of Cardinal’s Disclosure ScheduleERISA (whether or not subject to ERISA), Cardinal has set forth a complete each employment, severance or similar contract, plan, arrangement or policy, and accurate list of all existing bonuseach other plan, incentive, deferred policy or arrangement (written or oral) providing for compensation, pension, retirementbonuses, profit-sharing, thriftstock option or other stock related rights or other forms of incentive or deferred compensation, savingsvacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee stock ownershipassistance program, stock bonusdisability or sick leave benefits, stock purchaseworkers’ compensation, restricted stocksupplemental unemployment benefits, stock optionseverance benefits and post-employment or retirement benefits (including compensation, severancepension, welfare and fringe benefit planshealth, survivor life insurance, split dollar medical or other life insurance benefit planbenefits) which is maintained, employment administered or severance agreements contributed to by any Company or any ERISA Affiliate of a Company and all similar practices, policies and arrangements in which covers any current employee or former employee of the Companies, and all amendments and modifications thereto and written interpretations thereof have been furnished to Buyer together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Employee Plans”). Except as required by .
(b) None of the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal Companies nor any of its their Subsidiaries sponsors, maintains or contributes to, or has in the past six years sponsored, maintained or contributed to, any commitment to create any additional Compensation and Benefit Employee Plan or other plan (i) subject to modify Title IV of ERISA or change (ii) that is a defined benefit plan subject to any existing Compensation and Benefit Plansimilar Applicable Law.
(iic) None of the Companies, any ERISA Affiliate of a Company nor any predecessor thereof contributes to, or has in the past six years contributed to, any multiemployer plan, as defined in Section 3(37) of ERISA.
(d) Each Compensation and Benefit Employee Plan has been operated and administered maintained in compliance in all material respects in accordance with its terms and with applicable lawthe requirements prescribed by any and all Applicable Law, including, but not limited to, ERISA, including the Puerto Rico Code, which are applicable to such Employee Plan. Except as would not reasonably be expected to result in material liability to the Securities ActCompanies, there are no investigations (to the Exchange Actknowledge of Seller and other than review of determination letter requests) by any governmental agency, termination proceedings or other claims (except claims for benefits payable in the Age Discrimination in Employment Actnormal operation of the Employee Plans), suits or proceedings against or involving any Employee Plan or asserting any rights or claims to benefits under any Employee Plan pending, or to the knowledge of Seller, threatened or anticipated with respect to any regulations or rules promulgated thereunder, and all 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. Employee Plan.
(e) Each Compensation and Benefit Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that which is intended to be qualified under Section 401(a1081.01(a) of the Puerto Rico Code or other Applicable Law has received a favorable determination letter letter, or has applied pending or has time remaining in which to file an application for a favorable such determination from the Puerto Rico Treasury Department, and to Seller’s knowledge there is no reason why any such determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) should be revoked or not be reissued. Seller has made available to Buyer copies of the Code) from most recent determination letters issued by the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, Puerto Rico Treasury Department with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any each such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Employee Plan.
(ivf) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinalthe Companies has any current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, any former or current employees of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAsuch Company.
(vg) Neither Cardinal nor The consummation of the transaction contemplated by this Agreement will not, either alone or in connection with some other event (i) entitle any current or former employee, director or independent contractor to severance pay , bonus amounts, incentive plan payments, retirement benefits, job security benefits or similar benefits, (ii) result in any breach or violation of, or default under, any Employee Plan, (iii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits or (iv) increase the amount payable or trigger any other material obligation pursuant to any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basisEmployee Plans.
(vih) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the The transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior are not subject to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Acquisition Agreement (Oriental Financial Group Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure ScheduleThe Borrower, Cardinal has set forth a complete the Subsidiaries and accurate list of each ERISA Affiliate have complied in all existing bonusmaterial respects with ERISA and, incentivewhere applicable, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Code regarding each Plan.
(b) Except as disclosed on Schedule 7.10, each Plan is, and has been, established and maintained in substantial compliance with its terms, ERISA and, where applicable, the Code.
(c) No act, omission or transaction has occurred which could result in imposition on the Borrower, any Subsidiary or any ERISA Affiliate (whether directly or indirectly) of (i) either a civil penalty assessed pursuant to subsections (c), (i), (l) or (m) of section 502 of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii) Each Compensation and Benefit Plan breach of fiduciary duty liability damages under section 409 of ERISA, except as where such penalty or damages would not have a Material Adverse Effect.
(d) Full payment when due has been operated made of all amounts which the Borrower, the Subsidiaries or any ERISA Affiliate is required under the terms of each Plan or applicable law to have paid as contributions to such Plan as of the Closing Date, except where a failure would not have a Material Adverse Effect or any amount being contested in good faith and administered pursuant to appropriate action being pursued diligently.
(e) Except as disclosed in all material respects Schedule 7.10, neither the Borrower, the Subsidiaries nor any ERISA Affiliate sponsors, maintains, or contributes to an employee welfare benefit plan, as defined in accordance with its terms and with applicable lawsection 3(1) of ERISA, including, but without limitation, any such plan maintained to provide benefits to former employees of such entities, that may not limited be terminated by the Borrower, a Subsidiary or any ERISA Affiliate in its sole discretion at any time without any material liability.
(f) Neither the Borrower, the Subsidiaries nor any ERISA Affiliate sponsors, maintains or contributes to, ERISAor has at any time in the six-year period preceding the Closing Date sponsored, the Codemaintained or contributed to, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section , as defined in section 3(2) of ERISA (a “Pension Plan”) and ERISA, that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA, section 302 of ERISA or is or was a multiemployer plan under Subtitle E section 412 of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit PlanCode.
(ivg) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Each Foreign Pension Plan pursuant to Section 401(a)(29) is in compliance in all material respects with all requirements of law applicable thereto and the respective requirements of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each governing documents for such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) plan. With respect to each Compensation and Benefit Foreign Pension Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation none of the transactions contemplated by this Agreement would notBorrower, its Affiliates or any of their respective directors, officers, employees or agents has engaged in a transaction that could subject the Borrower or any Subsidiary, directly or indirectly (includingindirectly, without limitationto a tax or civil penalty that could reasonably be expected, as individually or in the aggregate, to result in a result Material Adverse Effect. With respect to each Foreign Pension Plan, reserves have been established in the financial statements furnished to the Lenders in respect of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employeeunfunded liabilities in accordance with applicable law and prudent business practice or, Consultant or Director to any payment (including severance pay or similar compensation) or any increase where required, in compensation, (B) result accordance with ordinary accounting practices in the vesting or acceleration of any benefits under any Compensation and Benefit jurisdiction in which such Foreign Pension Plan other than the Cardinal Stock is maintained. The aggregate unfunded liabilities with respect to such Foreign Pension Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would could not reasonably be expected to be deductible as result in a result Material Adverse Effect; the present value of the limitations under Section 162(maggregate accumulated benefit liabilities of all such Foreign Pension Plans (based on those assumptions used to fund each such Foreign Pension Plan) did not, as of the Code and last annual valuation date applicable thereto, exceed by more than $25,000,000 the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, fair market value of the transactions contemplated by this Agreement (including, without limitation, as a result assets of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as all such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the futureForeign Pension Plans.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Amendment and Restatement and Incremental Loan Assumption Agreement (Atp Oil & Gas Corp)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) 3.15 of Cardinal’s the PMAC Disclosure Schedule, Cardinal has set Schedule sets forth a complete and accurate 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, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and every Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”hereinafter defined) that is considered one employer with Cardinal under Section 4001(a)(14maintained by PMAC or an Affiliate (as hereinafter defined) of ERISA or Section 414(b) or on the date hereof (c) of the Code is or was subject to Title IV of ERISA or is or was each a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and "PMAC Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and "). Each PMAC Benefit Plan or will not require any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any consent as a result of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement or any other change of control of PMAC or any PMAC Subsidiary.
(b) Each PMAC Benefit Plan which has been intended to qualify under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable determination or approval letter from the Internal Revenue Service ("IRS") regarding its qualification under such section and, to the Knowledge of PMAC and its Affiliates, no such PMAC Benefit Plan has been maintained in a manner that would notpreclude qualified status.
(c) With respect to any PMAC Benefit Plan, directly there has been no (i) "prohibited transaction," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or indirectly Code Section 4975, for which an exemption is not available or (ii) failure to comply with any provision of ERISA, other applicable law, or any agreement, which, in either case, would subject PMAC or any Affiliate to liability (including, without limitation, as a result through any obligation of indemnification or contribution) for any termination of employment prior damages, penalties, or taxes, or any other material loss or expense. No litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to or following the Effective Timeroutine claims for benefits) reasonably be expected is pending or, to (A) entitle any EmployeePMAC's Knowledge, Consultant or Director threatened with respect to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and such PMAC Benefit Plan.
(ixd) Neither Cardinal PMAC nor any Affiliate has incurred any liability under Title IV of its Subsidiaries maintains ERISA which has not been paid in full as of the date of this Agreement. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any compensation plansemployee pension benefit plan maintained by PMAC or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any PMAC Benefit Plan maintained by PMAC or any Affiliate and subject to Title IV of ERISA, programs or arrangements the payments under which would not reasonably be expected to be deductible there has been no (other than as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement Agreement) (i) "reportable event," within the meaning of ERISA Section 4043 or the regulations thereunder, for which the notice requirement is not waived by the regulations thereunder, and (ii) event or condition which presents a material risk of a plan termination or any other event that may cause PMAC or any Affiliate to incur liability or have a lien imposed on its assets under Title IV of ERISA. Except as set forth in Section 3.15 of the PMAC Disclosure Schedule, neither PMAC nor any Affiliate has ever maintained a Multiemployer Plan (as hereinafter defined).
(e) With respect to each PMAC Benefit Plan, complete and correct copies of the following documents (if applicable to such PMAC Benefit Plan) have previously been delivered or made available to ANSYS: (i) all documents embodying or governing such PMAC Benefit Plan, and any funding medium for such PMAC Benefit Plan (including, without limitation, trust agreements) as a result of any termination of employment prior they may have been amended to the date hereof; (ii) the most recent IRS determination or following the Effective Timeapproval letter with respect to such PMAC Benefit Plan under Code Section 401(a), neither United nor Cardinaland any applications for determination or approval subsequently filed with the IRS; (iii) the most recently filed IRS Form 5500, with all applicable schedules and accountants' opinions attached thereto; and (iv) the current summary plan description for such PMAC Benefit Plan (or any other descriptions of their respective Subsidiaries will be obligated such PMAC Benefit Plan provided to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the futureemployees) and all modifications thereto.
(xif) As For purposes of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any this Section 3.15 of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.Agreement:
Appears in 1 contract
Samples: Merger Agreement (Ansys Inc)
Employee Benefit Plans. (a) The Community Bancshares Disclosure Letter contains a list identifying each “employee benefit plan,” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), which (i) On Section 6.03(m)(iis subject to any provision of ERISA, and (ii) is currently maintained, administered or contributed to by Community Bancshares or any entity, trade or business that, together with Community Bancshares, would be treated as a single employer under the provisions of Cardinal’s Code Sections 414(b), (c), (m) or (o) (“Community Bancshares ERISA Affiliate”), and covers any employee, director or former employee or director of Community Bancshares or any Community Bancshares ERISA Affiliate under which Community Bancshares or any Community Bancshares ERISA Affiliate has any liability. The Community Bancshares Disclosure Schedule, Cardinal has set forth Letter also contains a complete and accurate 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, severance, welfare and fringe benefit plans” as defined under ERISA which have been terminated by Community Bancshares or any Community Bancshares ERISA Affiliate since January 1, survivor life insurance2009. Copies of such plans (and, split dollar if applicable, related trust agreements or other life insurance benefit plan, employment or severance agreements contracts) and all similar practices, policies amendments thereto and arrangements written interpretations thereof have been furnished to First Merchants together with the three most recent annual reports (Form 5500) prepared in which connection with any such plan and the current or former employee summary plan descriptions (and any summary of material modifications thereto). Such plans are hereinafter referred to individually as an “Employee Plan” and collectively as the “Employees”), current Employee Plans.” The Employee Plans which individually or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is collectively would constitute an “employee pension benefit plan” within the meaning of as defined in Section 3(2) (A) of ERISA are identified as such in the list referred to above.
(a “Pension Plan”b) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter The Employee Plans have been operated in material compliance with all applicable laws, regulations, rulings and other requirements, as well as pursuant to the Code terms of their governing documents (including a determination that to the related trust under such Compensation and Benefit Plan is exempt from tax under extent consistent with ERISA).
(c) To the knowledge of Community Bancshares’ Management, no “prohibited transaction,” as defined in Section 501(a) 406 of ERISA or Section 4975 of the Code, for which no statutory or administrative exemption exists, and no “reportable event,” as defined in Section 4043(c) from of ERISA, for which a notice is required to be filed, has occurred with respect to any Employee Plan that could subject Community Bancshares to material taxes or penalties. Neither Community Bancshares nor any Community Bancshares ERISA Affiliate has any material liability to the Pension Benefit Guaranty Corporation (“PBGC”), to the Internal Revenue Service (“IRS”), to the Department of Labor (“DOL”), to the Employee Benefits Security Administration, with respect to any Employee Plan, except for routine premium payments to the PBGC.
(d) To the knowledge of Community Bancshares’ Management, no “fiduciary,” as defined in Section 3(21) of ERISA, of an Employee Plan has failed to comply with the requirements of Section 404 of ERISA in such a way as to cause material liability to Community Bancshares or any Community Bancshares ERISA Affiliate.
(e) Each of the Compensation Employee Plans which is intended to be qualified under Code Section 401(a) has been timely amended to comply in all material respects with the applicable requirements of the Code. Except as set forth in the Community Bancshares Disclosure Letter, Community Bancshares and/or any Community Bancshares ERISA Affiliate, as applicable, sought and Benefit Plan uses received favorable determination letters from the IRS (or are otherwise relying on an opinion letter issued to a prototype or volume submitter plan sponsor) and has furnished to First Merchants copies of the most recent IRS determination letters with respect to any such Employee Plan that is intended to be qualified under Code Section 401(a).
(f) No facts or circumstances exist that may subject Community Bancshares, or any Community Bancshares ERISA Affiliate, to any liability under ERISA Sections 4062, 4063 or 4064. Neither Community Bancshares nor any Community Bancshares ERISA Affiliate ever has engaged in any transaction within the subject meaning of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result ERISA Section 4069. Except as disclosed in the revocation Community Bancshares Disclosure Letter, there exist no facts or circumstances which could subject Community Bancshares, or any Community Bancshares ERISA Affiliate thereof, to withdrawal liability within the meaning of ERISA Section 4201 or to contingent withdrawal liability under ERISA Section 4204. Neither Community Bancshares nor any existing favorable determination letter Community Bancshares ERISA Affiliate ever has been a party to a transaction within the meaning of ERISA Section 4212(c).
(g) No Employee Plan subject to Title IV of ERISA has been terminated or incurred a partial termination (either voluntarily or involuntarily), in not receiving such a favorable determination letter. There is no way as to cause material pending additional liability to Community Bancshares or any Community Bancshares ERISA Affiliate.
(h) No claims involving an Employee Plan (other than normal benefit claims) have been filed in a court of law or, to the knowledge of CardinalCommunity Bancshares’ Management, have been threatened legal actionto be filed in a court of law.
(i) There is no contract, suit agreement, plan or claim relating arrangement covering any employee, director or former employee or director of Community Bancshares or the Bank that, individually or collectively, could give rise to the Compensation and Benefit Plans other than routine claims for benefitspayment of any amount that would not be deductible by reason of Section 280G or Section 162(a)(1) of the Code.
(j) To the knowledge of Community Bancshares’ Management, no event has occurred that would cause the imposition of the tax described in Code Section 4980B on Community Bancshares. Neither Cardinal nor any To the knowledge of its Subsidiaries Community Bancshares’ Management, Community Bancshares has engaged in a transactionmaterially complied with all requirements of ERISA Section 601, or omitted to take any actionas applicable, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Employee Plan.
(ivk) All contributions required to be made under The Community Bancshares Disclosure Letter contains a list of each employment, severance or other similar contract, arrangement or policy and each plan or arrangement (written or oral) providing for insurance coverage (including any self-insured arrangements), workers’ compensation, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits or deferred compensation, profit sharing, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits which (i) is not an Employee Plan, (ii) was entered into, maintained or contributed to, as the terms case may be, by Community Bancshares or the Bank and (iii) covers any employee, director or former employee or director of any Compensation Community Bancshares or the Bank. Such contracts, plans and Benefit Plan arrangements as are described above, copies or any employee benefit arrangements under any collective bargaining agreement to descriptions of all of which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinalfurnished previously to First Merchants, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected are hereinafter referred to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) collectively as the “Benefit Arrangements.” Each of the CodeBenefit Arrangements has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and (y) has taken any action, or omitted regulations which are applicable to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISAsuch Benefit Arrangements.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viiil) Except as set forth on Section 6.03(m)(viii) in the Community Bancshares Disclosure Letter or as required by applicable law, neither Community Bancshares nor any Community Bancshares ERISA Affiliate has any present or future liability in respect of Cardinal’s Disclosure Schedule, the consummation post-retirement health and medical benefits for former employees or directors of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) Community Bancshares or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit PlanCommunity Bancshares ERISA Affiliate.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(xm) Except as set forth on Section 6.03(m)(xin the Community Bancshares Disclosure Letter, there has been no amendment to, written interpretation or announcement (whether or not written) by Community Bancshares or any Community Bancshares ERISA Affiliate relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement administered by Community Bancshares or any Community Bancshares ERISA Affiliate which would increase materially the expense of Cardinal’s maintaining such Employee Plans or Benefit Arrangements above the level of the expense incurred in respect thereof for the fiscal year ended December 31, 2013.
(n) Except as otherwise provided in the Community Bancshares Disclosure ScheduleLetter, as a result, directly or indirectly, of the transactions contemplated by this the Agreement (including, without limitation, as a result will not cause acceleration of any termination of employment prior to or following the Effective Time), neither United nor Cardinalvesting in, or payment of, any of their respective Subsidiaries material benefits under any Employee Plan or Benefit Arrangement and will be obligated to make a payment to an not otherwise materially accelerate or increase any obligation under any Employee of Cardinal Plan or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the futureBenefit Arrangement.
(xio) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and With respect to any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified nonqualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to taxCode Section 409A, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of such plan has been identified on the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeCommunity Bancshares Disclosure Letter.
Appears in 1 contract
Employee Benefit Plans. (ia) On Section 6.03(m)(i) 3.30 of Cardinal’s the Purchaser Disclosure ScheduleLetter sets out a true, Cardinal has set forth correct and complete list and, where appropriate, a complete and accurate list description of all existing retirement, pension, supplemental pension, savings, retirement savings, retiring allowance, bonus, incentiveprofit sharing, stock purchase, stock option, phantom stock, share appreciation rights, deferred compensation, pensionseverance or termination pay, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar medical, hospital, dental care, vision care, drug, sick leave, short term or long term disability, salary continuation, unemployment benefits, vacation, incentive, compensation or other life insurance employee benefit plan, program, arrangement, policy or practice whether written or oral, formal or informal, funded or unfunded, registered or unregistered, insured or self-insured that is maintained or otherwise contributed to, or required to be contributed to, by or on behalf of the Purchaser Entities for the benefit of current, former or retired employees, directors, officers, shareholders, independent contractors or agents of the Purchaser Entities other than government sponsored pension, employment or severance agreements insurance, workers compensation and all similar practiceshealth insurance plans, policies and arrangements in which but excluding for the avoidance of doubt any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) of Cardinal or any of its Subsidiaries participates or to which Purchaser Employee Contracts containing any such Employeesprovisions (collectively, Consultants or Directors are a party (the “Compensation and Benefit Purchaser Employee Plans”). Except as required by None of the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit PlanPurchaser Employee Plans is a registered pension plan under the Tax Act.
(iib) Each Compensation and Benefit Purchaser Employee Plan has been operated maintained and administered in all material respects in accordance compliance with its terms and with the requirements of all applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination Laws in Employment Act, or any regulations or rules promulgated thereunder, and all 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 madematerial respects. Each Compensation and Benefit Purchaser Employee Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended required to be qualified registered under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance applicable Laws is duly registered with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereofappropriate Governmental Authorities.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions or premiums required to be made under paid, deducted or remitted and all obligations required to be performed by each Purchaser Entity pursuant to the terms of any Compensation and Benefit Purchaser Employee Plan or any employee benefit arrangements under any collective bargaining agreement by applicable Laws, have been paid, deducted, remitted or performed, as the case may be, in a timely fashion, and in all material respects, and there are no outstanding defaults or violations with respect to which Cardinal same.
(d) There is no pending termination or winding-up procedure in respect of any of its Subsidiaries is a party have been timely made the Purchaser Employee Plans, and no event has occurred or have been reflected on Cardinal’s financial statements. None of Cardinal, circumstance exists under which any of its Subsidiaries or any ERISA Affiliate (x) has provided, or the Purchaser Employee Plans would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, declared terminated or omitted to take any action, that has resulted, or would reasonably be expected to resultwound-up, in the imposition of a lien under Section 412(n) of the Code whole or pursuant to ERISAin part.
(ve) Neither Cardinal nor Except as set out in Section 3.30 of the Purchaser Disclosure Letter, no Purchaser Employee Plan has a deficit and the liabilities of the Purchaser Entities in respect of all Purchaser Employee Plans are properly accrued and reflected in the Purchaser Financial Statements in accordance with IFRS.
(f) The Purchaser Entities have delivered true, correct and complete copies of each of the following to the IsoCanMed Shareholders: the text of all Purchaser Employee Plans (where no text exists, a summary has been provided) and any related trust agreements, insurance contracts or other material documents governing those plans all as amended to the Execution Date, and, to the knowledge of its Subsidiaries the Purchaser, no fact, condition or circumstances exists or has occurred since the date of those documents which would materially affect or change the information contained in them.
(g) No promises or commitments have been made by a Purchaser Entity to amend any obligations Purchaser Employee Plan, to provide retiree health increased benefits or to establish any new benefit plan, except as required by applicable Laws or as set out in Section 3.30 of the Purchaser Disclosure Letter.
(h) The transactions contemplated in this Agreement and life insurancein each of the Transaction Documents will not result in or require any payment or severance, retiree long-term care insurance or retiree death the acceleration, vesting or other increase in benefits under any Compensation and Benefit Purchaser Employee Plan.
(i) No Purchaser Entity has an obligation to provide retirement benefits for any current, other than benefits mandated by Section 4980B former or retired employees of the Code, Purchaser Entities or to any other Person.
(j) None of the Purchaser Employee Plans require or permit retroactive increases or assessments in premiums or payments.
(k) No Purchaser Entity contributes and each such Compensation and Benefit Plan may no Purchaser Entity is required to contribute to any multi-employer pension or benefit plan. None of the Purchaser Employee Plans is a multi- employer pension or benefit plan.
(l) Each of the Purchaser Employee Plans can be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA restrictions and the Code (including 401(k) Purchaser Entities have the unrestricted power and 401(m) tests)authority to amend or terminate the Purchaser Employee Plans.
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Share Exchange Agreement
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set Schedule 4.18 sets forth a correct and complete and accurate list of all existing bonusB-Balloon Employee Benefit Plans. Each B-Balloon Employee Benefit Plan, incentiveand its related documents, deferred compensationhas been made available to Parent.
(b) There are no pending actions, pensionclaims or lawsuits that have been asserted or instituted against any B-Balloon Employee Benefit Plan, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insurance, split dollar or other life insurance benefit plan, employment or severance agreements and all similar practices, policies and arrangements in which any current or former employee (the “Employees”), current or former consultant (the “Consultants”) or current or former director (the “Directors”) assets of Cardinal or any of its Subsidiaries participates or to which the trusts under any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and B-Balloon Employee Benefit Plan or to modify or change the sponsor of any existing Compensation and B-Balloon Employee Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of CardinalB-Balloon, threatened legal action, suit against any fiduciary or claim relating administrator of any B-Balloon Employee Benefit Plan with respect to the Compensation and operation of any B-Balloon Employee Benefit Plans Plan (other than routine claims benefit claims), nor does B-Balloon have any knowledge of facts that could reasonably be expected to form the basis for benefits. any such claim or lawsuit.
(c) Neither Cardinal the execution and delivery of this Agreement nor the consummation of the transactions contemplated herein will (i) result in any payment becoming due to any current or former employee, officer, director or consultant of B-Balloon or any of its Subsidiaries has engaged subsidiaries, (ii) increase any benefits otherwise payable under any B-Balloon Employee Benefit Plan, (iii) result in a transaction, the acceleration of the time of payment or omitted to take vesting of any action, rights with respect to any Compensation and such benefits under any B-Balloon Employee Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All require any contributions required or payments to be made under the terms of any Compensation and Benefit Plan fund, or any employee benefit arrangements security to secure, any obligations under any collective bargaining agreement B-Balloon Employee Benefit Plan. There are no B-Balloon Employee Benefit Plans that, individually or collectively, could give rise to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has providedthe payment in connection with the transactions contemplated by this Agreement, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of connection with a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies of existing: (A) Compensation and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation combination of the transactions contemplated by this Agreement would notand any other event, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which amount that would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior pursuant to the Effective Time. As a result, directly or indirectly, terms of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the CodeIsraeli Law.
Appears in 1 contract
Samples: Merger Agreement (Neovasc Inc)
Employee Benefit Plans. (ia) On Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, Cardinal has set The attached Employee Benefits Schedule sets forth a complete and accurate correct list of all existing bonuseach “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) and each other formal, incentiveinformal or written employee benefit plan, program, policy, contract or arrangement providing for payment, reimbursement or benefits to current or former employees (or their beneficiaries or dependents) of the Company (including any bonus plan, plan for deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit planssick leave, survivor life insurance, split dollar employee health or other life insurance welfare benefit plan or other arrangement), maintained, sponsored, or contributed to by the Company during the past three years, or with respect to which the Company has any Liability or potential Liability. Each such item listed on the attached Employee Benefits Schedule is referred to herein as a “Plan.”
(b) The Company does not sponsor, maintain or have any obligation to contribute to (or any other Liability, including current or potential withdrawal Liability, with respect to) any “multiemployer plan” (as defined in Section 3(37) of ERISA) or, any employee benefit plan which is a “defined benefit plan, employment or severance agreements and all similar practices, policies and arrangements ” (as defined in which any current or former employee (the “Employees”Section 3(35) of ERISA), current whether or former consultant (not terminated. The Company does not have any liability or potential liability to the “Consultants”) Pension Benefit Guaranty Corporation or current or former director (the “Directors”) otherwise under Title IV of Cardinal or any of its Subsidiaries participates or to which any such Employees, Consultants or Directors are a party (the “Compensation and Benefit Plans”). Except as required by the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan or to modify or change any existing Compensation and Benefit PlanERISA.
(iic) Each Compensation and Benefit The Company does not have any obligation under any Plan to provide medical, health, life insurance or other welfare-type benefits to current or future retired or terminated employees (except for limited continued medical benefit coverage required to be provided under COBRA). The Company has been operated and administered complied in all material respects with the requirements of COBRA.
(d) Except as set forth on the attached Employee Benefits Schedule, the Company does not maintain, contribute to or have any Liability or potential Liability under (or with respect to) any employee benefit plan which is a “defined contribution plan” (as defined in accordance Section 3(34) of ERISA), whether or not terminated.
(e) For purposes of this Section 3.18, the term “Company” includes all entities treated as a single employer with its the Company pursuant to Section 414 of the Code.
(f) With respect to the Plans, all required payments, premiums, contributions, or reimbursements (including all employer contributions and employee salary reduction contributions) that are due have been made within the time periods prescribed by ERISA and the Code and all premiums, contributions, reimbursements or accruals for all periods ending prior to or as of the Closing shall have been made or properly accrued on the Latest Balance Sheet. None of the Plans has any unfunded Liabilities which are not reflected on the Latest Balance Sheet.
(g) The Plans and all related trusts, insurance contracts and funds have been maintained, funded and administered in compliance in all material respects with their terms and with the applicable law, including, but not limited to, provisions of ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, Code and all 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 madelaws. Each Compensation and Benefit Neither the Company, nor to the Knowledge of the Company any trustee or administrator of any Plan that is an “employee pension benefit plan” within has engaged in any transaction with respect to the meaning of Plans, nor do the transactions contemplated by this Agreement constitute transactions, which would subject the Company to either a civil penalty assessed pursuant to Section 3(2502(i) of ERISA or the tax or penalty on prohibited transactions imposed by Section 4975 of the Code. No actions, suits or claims with respect to the assets of the Plans are pending or, to the Knowledge of the Company, threatened which could result in or subject the Company to any Liability (a “Pension Plan”other than routine claims for benefits) and that the Company has no Knowledge of any circumstances which would give rise to or be expected to give rise to any such actions, suits or claims.
(h) Each of the Plans which is intended to be qualified under Section 401(a) of the Code has received or requested a favorable determination letter or has applied for a favorable determination letter in compliance with the Code (including a determination that the related trust under such Compensation and Benefit Plan is exempt from tax under Section 501(a) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter that such plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal qualified under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any of its Subsidiaries or any ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Pension Plan pursuant to Section 401(a)(29401(a) of the Code, and (y) to the Knowledge of the Company, there are no circumstances which would adversely affect the qualified status of any such Plan. Except as set forth on the Employee Benefits Schedule, all such Plans have been or will be timely amended for the requirements of the tax legislation commonly known as “GUST” and “EGTRRA” and has taken any action, been submitted to the Internal Revenue Service for a determination or omitted to take any action, opinion letter that has resulted, or would reasonably be expected to result, in takes the imposition of a lien GUST amendments into account within the applicable remedial amendment period specified under Section 412(n401(b) of the Code or pursuant to ERISACode.
(vi) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal The Company has provided the Merger Sub or made available to United, its attorneys with true and complete copies of existing: (Ato the extent applicable) Compensation and Benefit Plan (i) all documents and amendments thereto; summary plan descriptions pursuant to which the Plans are maintained and administered, (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed with the IRS; (D) most recent actuarial report and financial statement; (Eii) the most recent summary plan description; annual reports (FForm 5500 and any attachments thereto), (iii) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; financial statement and auditors report, and (Iiv) the most recent nondiscrimination tests performed under ERISA and IRS determination letter for the Code (including 401(k) and 401(m) tests)Plans.
(viiij) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure the Employee Benefits Schedule, the consummation none of the transactions contemplated by this Agreement would notPlans obligates the Company to pay any separation, directly severance, termination or indirectly (including, without limitation, similar benefit solely as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay or similar compensation) or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Plan.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions transaction contemplated by this Agreement (including, without limitation, or solely as a result of any termination change in control or ownership within the meaning of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Employee Benefit Plans. ERISA.
(i) On Section 6.03(m)(i) of Cardinal’s Except as disclosed in the Parent SEC Reports or Purchasers Disclosure Schedule, Cardinal has set forth a complete and accurate list of all existing bonusat the date hereof, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, Purchasers do not maintain or contribute to or have any obligation or liability to or with respect to any material employee stock ownership, stock bonus, stock purchase, restricted stock, stock option, severance, welfare and fringe benefit plans, survivor life insuranceincluding employee benefit plans within the meaning set forth in Section 3(3) of ERISA, split dollar programs, arrangements, practices or other life insurance benefit plansimilar material arrangements for the provision of benefits (such plans, employment programs, arrangements or severance agreements and all similar practices, policies and arrangements in which any current or former employee (practices of Purchasers being referred to as the “Employees”"PURCHASERS PLANS"), current or former consultant (but excluding any "MULTIEMPLOYER PLAN" within the “Consultants”) or current or former director (the “Directors”meaning of Section 3(37) of Cardinal ERISA or any a "MULTIPLE EMPLOYER PLAN" within the meaning of its Subsidiaries participates or Section 413(c) of the Code. The Purchasers Disclosure Schedule lists all Multiemployer Plans to which any of them makes contributions or has any obligation or liability to make contributions. Neither Purchaser maintains or has any liability with respect to any Multiple Employer Plan, which, individually or in the aggregate, could have a Material Adverse Effect. Neither Purchaser has any obligation to create or contribute to any additional such Employeesplan, Consultants program, arrangement or Directors are a party (the “Compensation and Benefit Plans”). Except practice or to amend any such plan, program, arrangement or practice so as to increase benefits or contributions thereunder, except as required by under the terms of this Agreement or as Previously Disclosed on Section 6.03(m)(i) of Cardinal’s Disclosure Schedulethe Purchasers Plans, neither Cardinal nor any of its Subsidiaries has any commitment to create any additional Compensation and Benefit Plan under existing collective bargaining agreements or to modify or change any existing Compensation and Benefit Plancomply with applicable law.
(ii) Each Compensation Except as disclosed in the Parent SEC Reports or Purchasers Disclosure Schedule, (A) there have been no prohibited transactions within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code with respect to any of the Purchasers Plans that could result in penalties, taxes or liabilities which, singly or in the aggregate, could have a Material Adverse Effect, (B) except for premiums due, there is no outstanding material liability, whether measured alone or in the aggregate, under Title IV of ERISA with respect to any of the Purchasers Plans, (C) neither the Pension Benefit Guaranty Corporation nor any plan administrator has instituted proceedings to terminate any of the Purchasers Plans subject to Title IV of ERISA other than in a "STANDARD TERMINATION" described in Section 4041(b) of ERISA, (D) none of the Purchasers Plans has incurred any "ACCUMULATED FUNDING DEFICIENCY" (as defined in Section 302 of ERISA and Benefit Plan Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each of the Purchasers Plans ended prior to the date of this Agreement, (E) the current present value of all projected benefit obligations under each of the Purchasers Plans which is subject to Title IV of ERISA did not, as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities by more than the amount, if any, disclosed in the Parent SEC Reports as of March 31, 1997, based upon reasonable actuarial assumptions currently utilized for such Purchasers Plan, (F) each of the Purchasers Plans has been operated and administered in all material respects in accordance with its terms and with applicable lawlaws during the period of time covered by the applicable statute of limitations, including, but not limited to, ERISA, (G) each of the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and all 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. Each Compensation and Benefit Plan that Purchasers Plans which is an “employee pension benefit plan” intended to be "QUALIFIED" within the meaning of Section 3(2) of ERISA (a “Pension Plan”) and that is intended to be qualified under Section 401(a) of the Code has received been determined by the IRS to be so qualified and such determination has not been modified, revoked or limited by failure to satisfy any condition thereof or by a favorable determination letter subsequent amendment thereto or a failure to amend, except that it may be necessary to make additional amendments retroactively to maintain the "QUALIFIED" status of such Purchasers Plans, and the period for making any such necessary retroactive amendments has applied not expired, (H) with respect to Multi-employer Plans, neither Purchaser has made or suffered a "COMPLETE WITHDRAWAL" or a "PARTIAL WITHDRAWAL," as such terms are respectively defined in Sections 4203, 4204 and 4205 of ERISA and, to the best knowledge of each Purchaser, no event has occurred or is expected to occur which presents a material risk of a complete or partial withdrawal under said Sections 4203, 4204 and 4205, (I) to the best knowledge of each Purchaser, there are no material pending, threatened or anticipated claims involving any of the Purchasers Plans other than claims for a favorable determination letter benefits in compliance the ordinary course, (J) each Seller and its Subsidiaries have no current material liability under Title IV of ERISA, and Purchasers do not reasonably anticipate that any such liability will be asserted against either Purchaser, and (K) no act, omission or transaction (individually or in the aggregate) has occurred with the Code respect to any Purchasers Plan that has resulted or could result in any material liability (including a determination that the related trust direct or indirect) of either Purchaser under such Compensation and Benefit Plan is exempt from tax under Section 501(aSections 409 or 502(c)(i) or (l) of ERISA or Chapter 43 of Subtitle (A) of the Code) from the Internal Revenue Service (“IRS”) or the Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and Cardinal is not aware of any circumstances that could adversely affect such qualification or that are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no material pending or, to the knowledge of Cardinal, threatened legal action, suit or claim relating to the Compensation and Benefit Plans other than routine claims for benefits. Neither Cardinal nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Compensation and Benefit Plan that would reasonably be expected to subject Cardinal or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such transaction expired as of the date hereof.
(iii) No Compensation and Benefit Plans currently maintained, or maintained within the last six years, by Cardinal or any of its Subsidiaries or any entity (an “ERISA Affiliate”) that is considered one employer with Cardinal under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E of Title IV of ERISA. To the knowledge of Cardinal, there is no pending investigation or enforcement action by the PBGC, the DOL or IRS or any other governmental agency with respect to any Compensation and Benefit Plan.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan or any employee benefit arrangements under any collective bargaining agreement to which Cardinal or any of its Subsidiaries is a party have been timely made or have been reflected on Cardinal’s financial statements. None of Cardinal, any the Purchasers Plans has an "ACCUMULATED FUNDING DEFICIENCY" (as defined in Section 302 of its Subsidiaries ERISA and Section 412 of the Code) or any ERISA Affiliate (x) has provided, or would reasonably be expected to be is required to provide, provide security to any Pension a Purchasers Plan pursuant to Section 401(a)(29) of the Code. Each Purchasers Plan can be unilaterally terminated by a Purchaser at any time without material liability, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, other than for amounts previously reflected in the imposition of a lien under Section 412(nfinancial statements (or notes thereto) of included in the Code or pursuant to ERISAParent SEC Reports.
(viii) Neither Cardinal nor any of its Subsidiaries has any obligations to provide retiree health and life insurance, retiree long-term care insurance The Parent SEC Reports or retiree death or other benefits under any Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Employees by Cardinal or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Employees retiree health or life insurance or retiree death or other benefits on Purchasers Disclosure Schedule contain a permanent basis.
(vi) Cardinal and its Subsidiaries do not maintain any Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if applicable, Cardinal has provided or made available to United, true and complete copies summary or list of existing: (A) Compensation or otherwise describe all employment contracts and Benefit Plan documents and amendments thereto; (B) trust instruments and insurance contracts; (C) two most recent Forms 5500 filed other employee benefit arrangements with the IRS; (D) most recent actuarial report and financial statement; (E) the most recent summary plan description; (F) forms filed with the PBGC (other than for minimum payments); (G) most recent determination or opinion letter issued by the IRS; (H) any Form 5310 or Form 5330 filed with the IRS; and (I) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(viii) Except as set forth on Section 6.03(m)(viii) of Cardinal’s Disclosure Schedule, the consummation of the transactions contemplated by this Agreement would not, directly or indirectly (including, without limitation, as a result of any termination of employment prior to or following the Effective Time) reasonably be expected to (A) entitle any Employee, Consultant or Director to any payment (including severance pay "CHANGE OF CONTROL" or similar compensation) provisions and all severance agreements with directors, executive officers or any increase in compensation, (B) result in the vesting or acceleration of any benefits under any Compensation and Benefit Plan other than the Cardinal Stock Plans and except as otherwise provided for in this Agreement or (C) result in any material increase in benefits payable under any Compensation and Benefit Planemployees.
(ix) Neither Cardinal nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as set forth on Section 6.03(m)(x) of Cardinal’s Disclosure Schedule, as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither United nor Cardinal, or any of their respective Subsidiaries will be obligated to make a payment to an Employee of Cardinal or any of its Subsidiaries that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(xi) As of the Effective Date, there are no supplemental employment retirement plans (each, a “SERP”) or non-qualified deferred compensation plans (“Deferred Compensation Plans”) between Cardinal and any of its employees that have assets through a grantor trust or trusts of which Cardinal is the grantor within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Code that are subject to claims of creditors, and except as set forth on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule, no such grantor trusts are required to be established on or after the Effective Time by the successor to Cardinal or any of its subsidiaries as a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), and each Deferred Compensation Plan that is a SERP or non-qualified deferred compensation plan of Cardinal is listed on Section 6.03(m)(xi) of Cardinal’s Disclosure Schedule.
(xii) Except as set forth on Section 6.03(m)(xii) of Cardinal’s Disclosure Schedule, neither Cardinal nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Cardinal or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code, and if any correction procedure authorized under any IRS guidance with respect to Section 409A is necessary or available on or before the Effective Time to prevent any such Section 409A document or operational failure, Cardinal agrees to so correct prior to the Effective Time. As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Cardinal nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Cardinal or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (TCW Group Inc)
