Employee Benefit Programs. (a) Schedule 3.24 hereto lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing. (b) Each Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section. The Company does not know, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section. (c) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. (d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder. (e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements). (f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code). (g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Affiliated Managers Group Inc), Agreement and Plan of Reorganization (Affiliated Managers Group Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 3.7 of the RMSI Disclosure Letter sets forth a list of every material and significant Employee Program that is currently maintained by RMSI or an Affiliate of RMSI (as defined below"RMSI Affiliate") that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing"RMSI Employee Programs").
(b) Each RMSI Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and except as disclosed in Section 3.7 of the RMSI Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such RMSI Employee Program through and including the Closing Date (or, if earlier, the date that such RMSI Employee Program was terminated). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not knowNeither RMSI nor any RMSI Affiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the RMSI Employee Programs that have been maintained by the CompanyPrograms. With respect to any RMSI Employee Program ever maintained by the CompanyProgram, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) material failure to comply with any ----- provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non- deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject RMSI or any RMSI Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of RMSI, threatened with respect to any such RMSI Employee Program.
(d) Neither Except as disclosed in Section 3.7 of the Company RMSI Disclosure Letter, during the last 3 years, neither RMSI nor any ERISA RMSI Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there which has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA or Code Section 412 (other than a "RMSI Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ), or has ever promised to provide such post-post- termination benefits. Any Employee Program which , for a period of longer than 12 months or (iii) has been subject provided health care or any other non-pension benefits to Title IV any individuals who were previously employed by entities acquired by RMSI prior to the date of ERISA has been terminated in accordance with Section 4041 this Agreement for a period of ERISA and the regulations promulgated thereunderlonger than 12 months.
(e) With respect to each RMSI Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, complete and correct copies of the following documents (if applicable to such RMSI Employee Program) have previously been delivered or made available to AMGXxxxxxx: (i) all documents embodying or governing such RMSI Employee Program, and any funding medium for the RMSI Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such RMSI Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such RMSI Employee Program; (v) the summary plan description for such RMSI Employee Program (or other descriptions of such RMSI Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such RMSI Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities with respect to any Employee Program subsequent to state or federal agency within the Closing (including, without limitation, health care continuation requirements)last three years.
(f) Each RMSI Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by RMSI to the Companygreatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any RMSI Employee Program (except claims incurred but not reported under any welfare plan and no condition exists which would limit the right of RMSI or any benefit described in Section 411(d)(6) of the Code)RMSI Affiliate to so amend, terminate or otherwise modify such RMSI Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements For purposes of this Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.Section 5.7:
Appears in 2 contracts
Samples: Merger Agreement (Merkert American Corp), Merger Agreement (Monroe James L)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 5.7 of the Xxxxxxx Disclosure Letter sets forth a list of every material and significant Employee Program that is currently maintained by Xxxxxxx or an Affiliate of Xxxxxxx (as defined belowa "Xxxxxxx Affiliate") that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing"Xxxxxxx Employee Programs").
(b) Each Xxxxxxx Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and except as disclosed in Section 5.7 of the Xxxxxxx Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such Xxxxxxx Employee Program through and including the Closing Date (or, if earlier, the date that such Xxxxxxx Employee Program). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Xxxxxxx Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not knowNeither Xxxxxxx nor any Xxxxxxx Affiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Xxxxxxx Employee Programs that have been maintained by the CompanyPrograms. With respect to any Xxxxxxx Employee Program ever maintained by the CompanyProgram, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) material failure to ----- comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject Xxxxxxx or any Xxxxxxx Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Xxxxxxx, threatened with respect to any such Xxxxxxx Employee Program.
(d) Neither Except as disclosed in Section 5.7 of the Company Xxxxxxx Disclosure Letter, during the last 3 years, neither Xxxxxxx nor any ERISA Xxxxxxx Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there which has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA or Code Section 412 (other than a "Xxxxxxx Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ), or has ever promised to provide such post-termination benefits. Any Employee Program which , for a period longer than 12 months or (iii) has been subject provided health care or any other non-pension benefits to Title IV any individuals who were previously employed by entities acquired by Xxxxxxx prior to the date of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunderthis Agreement for a period longer than 12 months.
(e) With respect to each Xxxxxxx Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, complete and correct copies of the following documents (if applicable to such Xxxxxxx Employee Program) have previously been made available delivered to AMGRMSI: (i) all documents embodying or governing such Xxxxxxx Employee Program, and any funding medium for the Xxxxxxx Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Xxxxxxx Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such Xxxxxxx Employee Program; (v) the summary plan description for such Xxxxxxx Employee Program (or other descriptions of such Xxxxxxx Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Xxxxxxx Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities with respect to any Employee Program subsequent to state or federal agency within the Closing (including, without limitation, health care continuation requirements)last three years.
(f) Each Xxxxxxx Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by Xxxxxxx to the Companygreatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Xxxxxxx Employee Program (and, except claims incurred but not reported under any welfare plan or any benefit described in as disclosed on Section 411(d)(6) 5.7 of the Code)Xxxxxxx Disclosure Letter, no condition exists which would limit the right of Xxxxxxx or the Xxxxxxx Affiliate to so amend, terminate or otherwise modify such Xxxxxxx Employee Program.
(g) No liability under Title IV or Section 302 of ERISA has been incurred by Xxxxxxx or any Xxxxxxx Affiliate that has not been satisfied in full and no condition exists that presents a material risk to Xxxxxxx or any Xxxxxxx Affiliate of incurring any such liability, other than liability for premiums due to the PBGC (which premiums have been paid when due).
(h) The GeoCapital Corporation Defined Benefit Pension PBGC has not instituted proceedings to terminate any Xxxxxxx Title IV Plan met and no condition exists that presents a material risk that such proceedings will be instituted.
(i) Except as disclosed in Section 5.7 of the requirements Xxxxxxx Disclosure Letter, with respect to each Xxxxxxx Title IV Plan, the present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan's actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(j) No Xxxxxxx Title IV Plan or any trust established there under has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Xxxxxxx Title IV Plan ended prior to the Closing Date.
(k) No amounts payable under the Xxxxxxx Employee Programs will fail to be deductible for federal income tax purposes by virtue of Section 4021(b)(13162(a)(1), 162(m) or 280G of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such planCode.
Appears in 2 contracts
Samples: Merger Agreement (Merkert American Corp), Merger Agreement (Monroe James L)
Employee Benefit Programs. Except as otherwise provided in Schedule 3.1(r):
(i) Schedule 3.1(r) sets forth all of the "employee benefit plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), employment, change-in-control, incentive, deferred compensation and severance policies, plans and arrangements, and all other employee benefit, fringe benefit plans and programs maintained or contributed to by the Seller with respect to current or former employees of the Business (the "PLANS"). Seller has provided or made available to Buyer (a) Schedule 3.24 hereto lists every Employee Program a copy of each of the Plans, including all amendments thereto, (as defined belowb) that has been maintained any trust agreements thereunder, (as defined belowc) each summary plan description, (d) the most recent favorable determination letter issued by the Company at any time during Internal Revenue Service, if applicable, and (e) for the three-year period ending on three most recent years, the date of the ClosingForm 5500 and attached schedules, audited financial statements, and actuarial valuation reports.
(bii) To the knowledge of Seller, each Plan is in all material respects, in compliance with the applicable requirements of law, including, if applicable, ERISA and the Code, and has been established and administered in accordance with its terms.
(iii) Each Employee Program Pension Benefit Plan which has ever been maintained by the Company and which has at any time been is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination letter that it is so qualified, and, to the knowledge of Seller, no facts or approval letter from the IRS regarding its qualification under such section. The Company does not know, and has no reason to know, of any event or omission that has occurred circumstances exist which would cause any of such Employee Program favorable determination letters to lose its qualification under the applicable Code section.
(c) The Company does not knowbe revoked. In addition, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Companyknowledge of Seller, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate Plan has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waivedas defined in Section 302 of ERISA and Section 412 of the Code), and to the knowledge of Seller, no "reportable event" (as defined in Section 4043(c) of ERISA) has occurred with respect to any Employee Program ever maintained by such Plan.
(iv) Except as set forth in Schedule 3.1(r), and to the Company knowledge of Seller, no plan or any Affiliate and subject arrangement exists which would be reasonably likely to Code Section 412 or ERISA Section 302. With respect result in the payment to any Employee Program maintained by employee or former employee of the Company Business of any money or an ERISA Affiliate and subject other property or rights or accelerate or provide any other rights or benefits to title IV any employee or former employee of ERISA, there has been no (nor will be any the Business as a result of the transaction transactions contemplated by this Agreement) (i) "reportable event," , whether or not such payment would constitute a parachute payment within the meaning of ERISA Section 4043280G of the Code, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) there are no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any contracts, agreements or other governing documents or applicable lawarrangements which would be reasonably likely to result in the payment to any such employee of an excess parachute payment" as that term is used in Section 280G of the Code.
(v) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Except as set forth in Schedule 3.243.1(r). Except Seller has not contributed to or participated in any pension plan which is a "multiemployer plan", as described defined in Schedule 3.24Section 3(37) of ERISA, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has in any "unfunded benefit liabilitiesmultiple employer" plan within the meaning of ERISA Section 4001(a)(18)4063 or 4064 of ERISA, as in respect of Business employees.
(vi) To the knowledge of Seller all contributions with respect to employees of the Business required to be made on or prior to Closing Date. Neither under the Company nor terms of any Affiliate has ever maintained a Multiemployer Plan. None Plan have been (or will by Closing be) timely made by Seller.
(vii) There are no pending or, to the knowledge of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated Seller threatened, claims (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9benefits in the normal course), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500lawsuits, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (investigations, administrative proceedings or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (includingactions arising out of, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination operation or administration of such planany Plan with respect to the Business or the employment of any current or former employee of the Business.
(viii) As of March 31, 1997, the assets of the Seller's Pension Plan for Hourly Paid Factory Employees of the Kansas City Plant are at least equal in value to the present value of the vested and unvested accrued benefits obligations, based on actuarial assumptions of Seller's actuaries as contained in the January 1, 1997 actuarial valuation; provided that this warranty shall not be deemed to have been given unless Buyer in its sole discretion assumes the Pension Plan. Between March 31, 1997 and the Closing Date there will have been no material adverse change in the funding of the Pension Plan.
Appears in 2 contracts
Samples: Asset Purchase Agreement (CTB International Corp), Asset Purchase Agreement (Butler Manufacturing Co)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.23 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller or an Affiliate at any time during the threesix-year period ending on the date of the Closing.
(b) Closing Date. Each Employee Program which has ever been maintained by the Company Seller or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code") has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section.
Section (cincluding without limitation Code Sections 105, 125, 401(a) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company501(c)(9)). With respect to any Employee Program ever maintained by the CompanySeller or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 of the Code4975, or breach (ii) failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement which, in the case of either of (i) or (ii), could subject the Seller or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISAexpense. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company Seller or any Affiliate, for all periods prior to the ClosingClosing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder2.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Duro Communications Corp), Asset Purchase Agreement (Duro Communications Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists SCHEDULE 2.20 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company and its Subsidiaries at any time during the three-year period ending on the date of the Closingpast six years.
(b) Each Employee Program which has ever been maintained by the Company or any of its Subsidiaries and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such section. The Company does not knowEach such Employee Program has, in fact, remained qualified under the applicable section of the Code from the effective date of the favorable determination letter for such Employee Program through and has no reason to knowincluding the date hereof (or, if earlier, the date that all of any such Employee Program's assets were distributed). No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, and has no reason to know, of any failure of any party to comply is in compliance with any laws applicable with respect to the Employee Programs that have been maintained by the CompanyCompany or any of its Subsidiaries. With respect to any Employee Program ever maintained by the Company, any Subsidiary or any affiliate thereof, there has occurred been no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 of the Code4975, or breach of any duty under ERISA or other applicable law or any agreement which could subject the Company or any of its Subsidiaries thereof to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the best knowledge of the Company, threatened with respect to any such Employee Program.
(d) Neither the Company Company, any of its Subsidiaries nor any ERISA Affiliate affiliate thereof has incurred any liability under title Title IV of ERISA which has not been paid in full prior to the Closingdate hereof. There has been is no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate Subsidiary thereof and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 2 contracts
Samples: Merger Agreement (MJD Communications Inc), Merger Agreement (MJD Communications Inc)
Employee Benefit Programs. (a) Section 3.11 of the Seller Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program (as defined below) that has been currently maintained (as defined below) by the Company at any time during the three-year period ending on the date of the ClosingSeller or an Affiliate.
(b) Each Employee Program which has ever been currently maintained by the Company and Seller or an Affiliate which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such section. The Company does not knowTo the knowledge of the Seller, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program currently maintained by the Seller or an Affiliate to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program currently maintained by the Seller or an Affiliate.
(c) The Company does not know, and has no reason to know, All of any failure of any party to comply with any laws applicable to the Employee Programs that currently maintained by the Seller and its Affiliates comply and have been maintained by in all material respects with all applicable requirements of ERISA, the CompanyCode and other applicable laws. With respect to any Employee Program ever maintained by the Company, there There has occurred no "prohibited transaction," (as defined in Section 406 of the ERISA or Section 4975 of the Code, or breach ) with respect to the Employee Programs currently maintained by the Seller and its Affiliates which is likely to result in the imposition of any duty penalties or taxes upon Seller or its Affiliates under Section 502(i) of ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to Section 4975 of the LLC, Merger Sub or AMGCode. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Seller, threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to the Employee Programs currently maintained by the Seller or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued.
(d) Neither the Company Seller nor any ERISA Affiliate has incurred any material liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever currently maintained by the Company Seller or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program currently maintained by the Company Seller or an ERISA any Affiliate and subject to title Title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, 4043 or the regulations thereunder (thereunder, for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) by the regulations thereunder (other than as may arise from the transactions contemplated by this Agreement), and (ii) no event or condition which presents a material risk of a plan termination (other than as may arise from the transactions contemplated by this Agreement) or any other event that may cause the Company Seller or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title Title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24Section 3.11 of the Seller Disclosure Schedule, no Employee Program currently maintained by the Company Seller or an any Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever currently maintained by the Company Seller or any Affiliate has ever provided provides health care or any other non-pension life insurance benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ERISA or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunderapplicable state insurance laws.
(e) With respect to each Employee Program currently maintained by the Company within the three (3) years preceding the ClosingSeller or an Affiliate, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGthe Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the most recent actuarial valuation reports completed with respect to such Employee Program; (v) the most recent summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities state or federal agency within the past year with respect to any such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 2 contracts
Samples: Merger Agreement (Washington Trust Bancorp Inc), Merger Agreement (First Financial Corp /Ri/)
Employee Benefit Programs. (a) Schedule 3.24 2.17 attached hereto lists sets forth a description of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by the Company Seller at any time during the three-year period ending on three (3) years prior to the date of the Closinghereof.
(b) Each Employee Program which listed on Schedule 2.17 hereto that has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service (the “IRS”) regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which that would cause any such Employee Program to lose its qualification under the applicable Code section. Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Company does There has not know, and has no reason to know, of been any failure of any party to comply with any laws applicable with respect to the any Employee Programs Program that have has been maintained by the CompanySeller. With respect to any Employee Program ever Programs now or heretofore maintained by the CompanySeller, there has occurred no "(i) “prohibited transaction," ” as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Code Section 4975 of the Code, or (ii) breach of any duty under ERISA or other applicable law which, in the case of either of (including, without limitation, any health care continuation requirements i) or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan(ii), which could result, result directly or indirectly, indirectly in any taxes, penalties or other liability to the LLCBuyer, Merger Sub Seller or AMGany affiliate (as defined below). No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Seller, threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24d) Neither Seller, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate of its affiliates has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever (i) provided health care or any other non-pension benefits to any employees after their employment is was terminated (other than as required by part Part 6 of subtitle Subtitle B of title Title I of ERISA) or has ever promised to provide such post-termination benefits. Any benefits or (ii) maintained an Employee Program which has been that is subject to Title IV of ERISA has been terminated in accordance with ERISA, Section 4041 401(a) or Section 412 of ERISA and the regulations promulgated thereunderCode, including, without limitation, any Multiemployer Plan.
(e) With respect to each No Seller Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies will obligate Buyer to assume or perform any obligation thereunder as a result of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying transactions contemplated by this Agreement or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination agreement or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)document executed pursuant hereto.
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in this Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.2.17:
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mac-Gray Corp), Asset Purchase Agreement (Mac-Gray Corp)
Employee Benefit Programs. (a) Section 4.12(a) of the Seller Disclosure Schedule 3.24 hereto lists sets forth a list of every material Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller, the Seller's Bank or an Affiliate at any time during the three-year period ending on the date of the Closingthree years preceding this Agreement.
(b) Each Employee Program which has ever been maintained by the Company Seller, the Seller's Bank or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program that is qualified under Section 401(a) of the Code.
(c) The Company does not knowNone of the Seller, and has no reason to the Seller's Bank or any Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Employee Programs that have been are currently maintained by the CompanySeller, the Seller's Bank or any Affiliate. With respect to any Employee Program ever currently maintained by the CompanySeller, the Seller's Bank or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 Employee Retirement Income Security Act of the Code1974, as amended ("ERISA"), or breach Code Section 4975, (ii) material failure to comply with any provision of ERISA, other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Seller, the Seller's Bank or any Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Seller, the Seller's Bank or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Section 4.12(c) of the Seller Disclosure Schedule).
(d) Neither None of the Company Seller, the Seller's Bank nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company Seller, the Seller's Bank or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company Seller, the Seller's Bank or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company Seller, the Seller's Bank or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no No Employee Program maintained by the Company Seller, the Seller's Bank or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company Seller, the Seller's Bank nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company Seller, the Seller's Bank or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company Seller, the Seller's Bank or any Subsidiary within the three (3) years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGthe Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities state or federal agency within the last six years with respect to any such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program required to be listed on Section 4.12(a) of the Seller Disclosure Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by the CompanySeller, the Seller's Bank or the Affiliate to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan or any benefit described in Section 411(d)(6) Employee Program document has failed to effectively reserve the right of the Code)Seller, the Seller's Bank or the Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program currently maintained by the Seller or the Seller's Bank (including each non-qualified deferred compensation arrangement) is maintained in compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation state securities laws including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program currently maintained by the Seller, the Seller's Bank or an Affiliate has complied with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this section:
Appears in 2 contracts
Samples: Merger Agreement (Seacoast Financial Services Corp), Merger Agreement (Home Port Bancorp Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.19 to this Agreement sets forth a list of every Employee Program (as defined below) that has been maintained (as that term is further defined below) by the Company at any time during the three-year period ending on the date of the Closing.
(b) DHG Entities since its inception. Each Employee Program which has ever been maintained by the Company DHG Entities and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable determination or approval letter from the IRS regarding its qualification under that section and has, in fact, been qualified under the applicable section of the Code from the effective date of that Employee Program through and including the Closing (or, if earlier, the date that all of such sectionEmployee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification Qualification under the applicable Code section.
(c) The Company does . There has not know, and has no reason to know, of been any failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by the CompanyDHG Entities. With respect to any Employee Program ever now or heretofore maintained by the CompanyDHG Entities, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectlyindirectly (including without limitation through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLC, Merger Sub DHG Entities or AMGany Affiliate (as defined below). No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the best knowledge of the DHG Entities and the Stockholders, threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has . The DHG Entities have not incurred any liability under title Title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate DHG Entities and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.Employee
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.25 sets forth a list of every Employee Program (as defined below) that ------------- has been maintained (as defined below) by the Company or an Affiliate at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section. The Company does not know, section or an application for a favorable determination letter or an approval letter has been filed with the IRS within the remedial amendment period for such plan as described in Treasury Regulation (S)11.401(b)-1 and has no reason in form and operation met the requirements in order to knowbe qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of any such Employee Program's assets were distributed). No event or omission that has occurred which would cause any such Employee Program to lose its no longer meet the requirements for qualification under the applicable Code sectionsection and each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption or surrender charge or comparable liability.
(c) The Neither the Company does not know, and has no reason to know, nor any Affiliate knows of any failure of by the Company, any party Affiliate or any Stockholder to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever maintained by the CompanyCompany or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) failure to comply with any ----- provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) any failure to meet the applicable limits on deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefitsbenefits and applications to the IRS for a favorable determination or approval letter) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to ever maintained any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there which has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA or Code Section 412, including, but not limited to, any Multiemployer Plan or (other than a Multiemployer Planii) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated or has ever become obligated to provide such post-termination benefits (other than as required by part 6 of subtitle B of title I of ERISA) ERISA or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunderother applicable law).
(e) With respect to each Employee Program maintained by the Company within the three (3) six years preceding the Closingdate hereof, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered or made available to AMGBuyer or its counsel: (i) all the currently effective plan documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to such Employee Program; (v) the most recent summary plan description for such Employee Program (or other descriptions description of such Employee Program provided to employees) and all modifications thereto; (vvi) the currently effective document for any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all any registration statement or other materials reasonably necessary for AMG to perform any of its responsibilities with respect filing made pursuant to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)federal or state securities law.
(f) Each With respect to each Employee Program required to be listed on Schedule 3.24 may be amended2.25, terminatedno employee communications issued by the Company or any Affiliate ------------- or, modified except to the extent required by law, provision of any Employee Program document has ever purported to limit the right of the Company or the Affiliate to amend, terminate or otherwise revised by the Company, modify (including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6Program) of the Code)such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met [Intentionally Omitted].
(h) Each Employee Program ever maintained by the Company or an Affiliate has complied with the applicable notification and other applicable requirements of Section 4021(b)(13the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, and the Mental Health Parity Act of 1996.
(i) For purposes of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 2.25 lists every Employee Program (as defined below) ------------- that has been maintained (as defined below) by the Company Seller at any time during the three-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company Seller and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been continuously qualified under the applicable section of the Code since the effective date of such Employee Program. The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company Seller does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanySeller. With respect to any Employee Program ever maintained by the CompanySeller, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGBuyer. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company Seller nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs has ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title Title IV of ERISA (other than a Multiemployer Planincluding, but not limited to, any Multi-employer Plan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part Part 6 of subtitle Subtitle B of title Title I of ERISA) or has ever promised to provide such post-post- termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company Seller within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG Buyer to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists every The Employee Program (Programs maintained by Seller or an ERISA Affiliate or with respect to which Seller or an ERISA Affiliate has or may have liabilities are referred to herein as defined belowthe “Seller Employee Programs”. Section 3.12(a) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the ClosingSeller Disclosure Schedule sets forth a list of each Seller Employee Program.
(b) Each Seller Employee Program which has ever been maintained by the Company and which has at any time been is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, to the Knowledge of Seller, been qualified under the applicable section of the Code from the effective date of such Seller Employee Program through and including the Closing Date (or, if earlier, the date that all of such Seller Employee Program’s assets were distributed). The Company does not knowTo the Knowledge of Seller, and has no reason to know, of any event or omission that has occurred which would cause any such Seller Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Company does not know, and has no reason to know, Neither Seller nor any ERISA Affiliate knows of any failure of any party to comply in all material respects with any laws applicable with respect to the Seller Employee Programs that have been maintained by the CompanyPrograms. With respect to any Seller Employee Program ever maintained by the CompanyProgram, there has occurred been no "(i) “prohibited transaction," ” as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable Law, or breach any agreement, or (iii) non deductible contribution, which, in the case of any duty under of (i), (ii), or (iii), would subject Seller or any ERISA Affiliate to material liability either directly or other applicable law indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the Knowledge of Seller, threatened with respect to any such Seller Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawLaw) with respect to all Seller Employee Programs ever maintained by the Company or any AffiliatePrograms, for all periods prior to the ClosingClosing Date in all material respects, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no d) Neither Seller nor any ERISA Affiliate has within the past six years maintained an Employee Program maintained by the Company or an Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within ERISA, Section 412 of the meaning Code, Section 302 of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained or a Multiemployer Plan. None of the Seller Employee Programs ever maintained by the Company or any Affiliate has ever in the past six years provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or state continuation laws or benefits in the nature of severance pay pursuant to an employment, severance or similar agreement) or has ever been promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Seller Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered or made available to AMGBuyer: (i) all documents embodying or governing such Seller Employee Program, and any funding medium for the Seller Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9)opinion letter, and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' ’ opinions attached thereto; (iv) the most recent actuarial valuation report completed with respect to such Seller Employee Program; (v) the summary plan description for such Seller Employee Program (or other descriptions of such Seller Employee Program provided to employees) and all subsequent modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Seller Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG material correspondence to perform and from any of its responsibilities state or federal agency within the last three years with respect to any such Seller Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Seller Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described Seller in Section 411(d)(6) of the Code)accordance with its terms.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Except as set forth in Section 4021(b)(133.12(g) of ERISA at all times and the Seller Disclosure Schedule, neither Seller nor any of its Subsidiaries is a party to any employment or consulting agreements with any current or former manager, director, officer, or employee which required payment of cash compensation in the calendar year ended December 31, 2010 in excess of $100,000 or is expected to require payment of cash compensation in the calendar year ending December 31, 2011 in excess of $100,000.
(h) Except with respect to the agreements disclosed or described generally in Section 3.12(h) of the Seller Disclosure Schedule or as contemplated by this Agreement, neither Seller nor any of its Subsidiaries is a resultparty to any oral or written (i) agreement with any stockholders, was not required make director, or employee of Seller or any filings with of its Subsidiaries (A) the Pension Benefit Guaranty Corporation including without limitationbenefits of which are contingent, filings in connection with or the terms of which are materially altered, upon the occurrence of a transaction involving Seller or any of its Subsidiaries of the nature of any of the transactions contemplated by this Agreement or (B) providing any term of employment or compensation guarantee, or (C) severance benefits after the termination of employment of such director or employee; or (ii) agreement or plan binding Seller or any of its Subsidiaries, including any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, or severance benefit plan, any of the benefits of which shall be increased, or the vesting of the benefits of which shall be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which shall be calculated on the basis of any of the transactions contemplated by this Agreement.
(i) Each Employee Program that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been operated and maintained in material operational and documentary compliance with Section 409A of the Code since January 1, 2009. No Seller Stock Option is subject to Section 409A of the Code.
(j) For purposes of this section:
Appears in 1 contract
Samples: Merger Agreement (Ansys Inc)
Employee Benefit Programs. (a) Section 5.3.18 of the Company Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program (as defined below) that has been currently maintained (as defined below) by the Company, any of its Subsidiaries or any Company at any time during the three-year period ending on the date of the Closing.P.C.
(b) Each Employee Program which has ever been maintained by the Company, any of its Subsidiaries or any Company P.C. and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code Code, has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Effective Time (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does Except for amendments made to the Code for which the remedial amendment period has not knowexpired, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does There has not know, and has no reason to know, of been any failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by the Company, its Subsidiaries or any Company P.C. which is reasonably likely to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole. With respect to any Employee Program ever now or heretofore maintained by the Company, any of its Subsidiaries or any Company P.C., there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectlyindirectly (including without limitation through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLCCompany or any Affiliate (as defined below) which is reasonably likely to have a Material Adverse Effect on the Company and its Subsidiaries, Merger Sub or AMGtaken as a whole. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of the Company, threatened with respect to any such Employee ProgramProgram which is reasonably likely to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
(d) Neither None of the Company, any of its Subsidiaries or any Company nor any ERISA Affiliate P.C. has incurred any liability under title Title IV of ERISA which has will not been be paid in full prior to the ClosingEffective Time. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company Company, any of its Subsidiaries or any Affiliate Company P.C.s and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company, any of its Subsidiaries or any Company or an ERISA Affiliate P.C. and subject to title Title IV of ERISA, there has been no (nor will there be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.of
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.19 of the Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program (as defined below) that has been maintained (as such term is further defined below) by in connection with the Company Monarch Dental Centers business at any time during the three-year period ending on the date of the Closing.
(b) Each Employee Program which has ever been maintained by the Company or any Entity and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and to the best knowledge of Melaxxx xxx, in fact, been continuously qualified under the applicable section of the Code since the effective date of such Employee Program. The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not knowTo the best knowledge of Melaxxx xxxre is no, and has Melaxxx xxx no reason to knowknow of, of any material failure of any party to comply with any person laws applicable to the Employee Programs that have been maintained by in connection with the CompanyMonarch Dental Centers business. With respect to any Employee Program ever maintained by in connection with the CompanyMonarch Dental Centers business, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the CodeCode (for which there exists neither a statutory nor regulatory exception), or material breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan or to any person in regard to such plan), which could result, directly or indirectlyindirectly (including, without limitation, through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLCCompany, Merger Sub any Entity or AMGany of their affiliates. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened or, to the best knowledge of Melaxxx, xxreatened with respect to any such Employee Program.
(d) Neither None of the Company Company, any Entity nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning has ever maintained any Employee Program which has been subject to Title IV of ERISA or Section 4043412 of the Code (including, but not limited to, any Multiemployer Plan (as defined below)) or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title Title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by or on behalf of the Company or any Entity within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGGoodxxx, Xxocter & Hoar: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) ), as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy and any excess loss policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG the Company or any Entity to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in this Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.2.19:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.25 sets forth a list of every Employee Program (as defined below) ------------- that has been maintained (as defined below) by the Company or an Affiliate at any time during the three-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and except as disclosed in Schedule 2.25 has, in fact, been qualified under the ------------- applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed) and no amendment to any Employee Program or failure to amend any Employee Program has occurred with respect to which the remedial amendment period described in Treasury Regulation Section 1.401(b)-1 has expired. The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code sectionsection and each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption for surrender charge or comparable liability.
(c) The Neither the Company does not knownor any Affiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever maintained by the CompanyCompany or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) ----- material failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of the Company and the Stockholders, threatened with respect to any such Employee Program. Notwithstanding anything to the contrary in subsection (b) and/or (c) of this Section 2.25, no representation is made as to the satisfaction of any formal requirements of the Code (relating to the documentation of such Employee Programs) with respect to which the remedial amendment period set forth in Section 401(b) of the Code, and any regulations, rulings or other releases thereunder has not yet expired.
(d) Neither the Company nor any ERISA Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to ever maintained any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there which has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a or Code Section 412, including, but not limited to, any Multiemployer Plan, (ii) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18)except as disclosed in Schedule 2.25, as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-non- ------------- pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which benefits or (iii) except as disclosed in Schedule 2.25, has been subject ever provided health care or any other non-pension ------------- benefits to Title IV any individuals who were previously employed by entities acquired by the Company prior to the date of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunderthis Agreement.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities with respect to any Employee Program subsequent to state or federal agency within the Closing (including, without limitation, health care continuation requirements)last three years.
(f) Each Employee Program required to be listed on Schedule 3.24 2.25 ------------- may be amended, terminated, modified or otherwise revised modified by the CompanyCompany to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan or any benefit described in Section 411(d)(6) Employee Program document has ever purported to limit the right of the Code)Company or the Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation state securities laws including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act and/or state "blue sky" laws.
(h) Each Employee Program ever maintained by the Company or an Affiliate has complied in all material respects with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, and the Mental Health Parity Act of 1996.
(i) For purposes of this section:
Appears in 1 contract
Employee Benefit Programs. (a) Section 5.2.16 of the Monarch Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program (as defined below) that has been currently maintained (as defined below) by the Company at Monarch or any time during the three-year period ending on the date of the Closing.its Subsidiaries or any Monarch P.C.
(b) Each Employee Program which has ever been maintained by the Company Monarch, any of its Subsidiaries or any Monarch P.C. and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code Code, has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Effective Time (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does Except for amendments made to the Code for which the remedial amendment period has not knowexpired, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does There has not know, and has no reason to know, of been any failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by the CompanyMonarch, its Subsidiaries or any Monarch P.C. which is reasonably likely to have a Material Adverse Effect on Monarch and its Subsidiaries, taken as a whole. With respect to any Employee Program ever now or heretofore maintained by the CompanyMonarch, any of its Subsidiaries or any Monarch P.C., there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectlyindirectly (including without limitation through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLCMonarch or any Affiliate (as defined below) which is reasonably likely to have a Material Adverse Effect on Monarch and its Subsidiaries, Merger Sub or AMGtaken as a whole. No litigation, arbitration, or governmental administrative proceeding (or investigation) or 22 other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Monarch, threatened with respect to any such Employee ProgramProgram which is reasonably likely to have a Material Adverse Effect on Monarch and its Subsidiaries, taken as a whole.
(d) Neither the Company nor None of Monarch, any ERISA Affiliate of its Subsidiaries or any Monarch P.C. has incurred any liability under title Title IV of ERISA which has will not been be paid in full prior to the ClosingEffective Time. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company Monarch, any of its Subsidiaries or any Affiliate Monarch P.C.s and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company Monarch, any of its Subsidiaries or an ERISA Affiliate any Monarch P.C. and subject to title Title IV of ERISA, there has been no (nor will there be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company Monarch, any of its Subsidiaries or any ERISA Affiliate Monarch P.C. to incur 18 26 liability or have a lien imposed on its assets under title Title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever heretofore maintained by the Company Monarch, any of its Subsidiaries or any AffiliateMonarch P.C., for all periods prior to the ClosingEffective Time, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24Section 5.2.16 of the Monarch Disclosure Schedule). Except as described in Schedule 3.24Section 5.2.16 of the Monarch Disclosure Schedule, no Employee Program maintained by the Company Monarch, any of its Subsidiaries or an Affiliate any Monarch P.C. and subject to title Title IV of ERISA (other than a Multiemployer Multi-employer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor None of Monarch, any Affiliate of its Subsidiaries or any Monarch P.C. has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company Monarch, any of its Subsidiaries or any Affiliate Monarch P.C. has ever provided health care or any other non-pension benefits to any employees after their employment is was terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete For purposes of this Section 5.2.16 and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.5.3.18:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 2.24 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9of the Code, and each associated trust which at any time has been intended to be exempt from taxation pursuant to Section 501(a) of the Code has received is the subject of a favorable determination determination, opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification or exemption from taxation, as applicable, under such sectionsection and has, in fact, been qualified or tax exempt, as applicable, under the applicable section of the Code through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, know and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate (as defined below) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" ever (whether or not waivedi) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and which has been subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title Title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and ; (ii) no event maintained any Multiemployer Plan (as defined below); or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawiii) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ERISA or benefits that continue for a brief period of time after termination of employment, for example for the balance of the month in which an employee terminates, or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder).
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination determination, opinion or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9and 501(a), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG Buyer to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Neither the Company nor any Affiliate has any announced plan or legally binding commitment to create any additional Employee Program which is intended to cover employees or former employees of the Company or any Affiliate (with respect to their relationship with such entities) or to amend or modify any existing Employee Program which covers or has covered employees or former employees of the Company or any Affiliate (with respect to their relationship with such entities).
(g) Each Employee Program Plan listed on Schedule 3.24 2.24 may be amended, terminated, modified or otherwise revised prospectively by the Company, Company including the elimination of any and all future benefit accruals under any Employee Plan.
(h) No event has occurred in connection with which the Company, any Affiliate or any Employee Program, directly or indirectly, could be subject to any material liability (A) under any statute, regulation or governmental order relating to any Employee Programs or (B) pursuant to any obligation of the Company or any Affiliate to indemnify any person against liability incurred under any such statute, regulation or order as they relate to the Employee Programs.
(i) Neither the execution and delivery of this Agreement by the Company nor the consummation of the transactions contemplated hereby will result in the acceleration or creation of any rights of any person to benefits under any Employee Program (except claims incurred but not reported including, without limitation, the acceleration of the vesting or exercisability of any stock options, the acceleration of the vesting of any restricted stock, or the acceleration or creation of any rights under any welfare plan severance, parachute or any benefit described change in Section 411(d)(6) of the Codecontrol agreement).
(gj) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program and related trust agreement or other funding instrument, as applicable, which covers or has covered employees or former employees of the requirements Company or any Affiliate (with respect to their relationship with such entities) is legally valid and binding and in full force and effect.
(k) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company or any Affiliate (with respect to its relationship with such entities) that, individually or collectively, provides for the payment by the Company or any Affiliate of any amount (i) that is not deductible under Section 4021(b)(13162(a)(1) or 404 of ERISA at all times the Code or (ii) that is an "excess parachute payment" pursuant to Section 280G of the Code.
(l) All contributions required to be made by the Company or any Affiliate with respect to any Employee Program due as of any date through and as a result, was not required make any filings with including the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination Closing Date have been made when due.
(m) For purposes of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 2.22 hereto lists sets forth a list of every Employee Program (as defined belowhereinafter defined) that has been maintained (as defined belowsuch term is hereinafter defined) by the Company Seller or any of its subsidiaries or affiliates at any time during the three5-year period ending on the date of the Closinghereof.
(b) Each Except as set forth in Schedule 2.22 hereto, each Employee Program which has ever been maintained by the Company Seller or any of its subsidiaries or affiliates and which has at any time been intended to qualify under Section 401(a) or 501(c)(9501(a) of the Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does Except as set forth in Schedule 2.22 hereto, there has not know, and has no reason to know, of been any failure of any party Seller to comply with any laws applicable with respect to the Employee Programs that have been maintained by the CompanySeller or any of its subsidiaries or affiliates. With respect to any Employee Program ever now or heretofore maintained by the Company, Seller or any of its subsidiaries or affiliates,there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectlyindirectly (including without limitation through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLCSeller or any of its subsidiaries or affiliates. Except as set forth in Schedule 2.22 hereto, Merger Sub or AMG. No no litigation, arbitration, or governmental administrative proceeding (or investigation) investigation or other proceeding (other than those relating to routine claims for benefits) is pending or or, to Seller's Knowledge, threatened with respect to any such Employee Program.
(d) Neither the Company Seller nor any ERISA Affiliate of its subsidiaries or affiliates has incurred any liability under title Title IV of ERISA which has will not been be paid in full prior to the Closing. There Except as set forth in Schedule 2.22 hereto, there has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company Seller or any Affiliate of its subsidiaries or affiliates and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company Seller or an ERISA Affiliate any of its subsidiaries or affiliates and subject to title Title IV of ERISA, there has been no (nor will there be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and or (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company Seller or any ERISA Affiliate of its subsidiaries or affiliates to incur 18 26 liability or have a lien imposed on its assets under title Title IV of or ERISA. All Except as set forth in Schedule 2.22 hereto, all payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company Seller or any Affiliateof its subsidiaries or affiliates, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.242.22 hereto). Except as described in Schedule 3.242.22 hereto, no Employee Program maintained by the Company Seller or an Affiliate any of its subsidiaries or affiliates and subject to title Title IV of ERISA (other than a Multiemployer PlanPlan as hereinafter defined) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company Seller nor any Affiliate of its subsidiaries or affiliates has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company Seller or any Affiliate of its subsidiaries or affiliates has ever provided health care or any other non-pension benefits to any employees after their employment is was terminated (other than as required by part Part 6 of subtitle Subtitle B of title Title I of ERISAERISA or any other health benefits law) or has ever promised to provide such post-post- termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company Seller of any of its subsidiaries or affiliates within the three (3) five years preceding the Closingdate hereof, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (Program, including, without limitation, trust agreements) as they may have been amendedamended through the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or 501(c)(9501(a), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the current summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all any material modifications theretoto such summary plan descriptions or other descriptions; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent Multiemployer Plan, any participation or adoption agreement relating to the Closing (including, without limitation, health care continuation requirements)any such participation in or contributions under such plan by Seller or any of its subsidiaries or affiliates.
(f) Each Except as set forth in Schedule 2.22 hereto, each Employee Program listed on Schedule 3.24 may be amended, terminated, modified maintained by Seller or otherwise revised any of its subsidiaries or affiliates as of the date hereof is subject to termination by the CompanyBoard of Directors of such Seller or any of its subsidiaries or affiliates, including as the elimination case may be, without any further liability or obligation on the part of Seller or any and all future benefit accruals of its subsidiaries or affiliates to make further contributions to any trust maintained under any such Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code)following such termination.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements Buyer will not adopt or in any way become a successor employer with respect to any such Employee Program. Except as otherwise required by law, any obligation, liabilities or responsibilities under COBRA with respect to any such Employee Program will be satisfied by Seller, and Buyer shall have no obligations, liabilities or responsibilities under COBRA with respect to any such Employee Program. Seller shall indemnify Buyer for any and all liability imposed by law under COBRA with respect to any such Employee Program.
(h) For purposes of this Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.2.22:
Appears in 1 contract
Samples: Asset Purchase Agreement (Kinetic Concepts Inc /Tx/)
Employee Benefit Programs. (a) To the knowledge of Seller after due inquiry, Schedule 3.24 hereto 2.15 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company LMC at any time during the three-year period ending on the date of the ClosingClosing Date.
(ba) Each To the knowledge of Seller after due inquiry, each Employee Program which has ever been maintained by the Company LMC and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code) has received a favorable determination or approval letter from the IRS Internal Revenue Service (the "IRS") regarding its qualification under such sectionSection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(cb) The Company does not know, and Seller has no knowledge of or has reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanyLMC. With respect to any Employee Program ever maintained by the CompanyLMC, to Seller's knowledge, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub LMC or AMGto either Buyer. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. To the knowledge of Seller after due inquiry, no Employee Program has any material unfunded or underfunded obligation to provide benefits to any past, current or future participant therein.
(dc) Neither To the Company knowledge of Seller after due inquiry, neither LMC nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under limited to, any welfare plan or any benefit described in Section 411(d)(6) of the Code).
Multiemployer Plan (g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.as
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.23 sets forth a list of every Employee Program (as defined in Section 2.23(c) below) that has been maintained by the Seller or an Affiliate (as defined belowherein) by the Company at any time during the threesix-year period ending on the date of the Closing.
(b) Closing Date. Each Employee Program which has ever been maintained by the Company Seller or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not knowTo the knowledge of Seller and the Principal Shareholders, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section.
Section (cincluding without limitation Code Sections 105, 125, 401(a) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company501(c)(9)). With respect to any Employee Program ever maintained by the CompanySeller or any Affiliate, to the knowledge of Seller and the Principal Shareholders, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA or Code Section 4975 of the Code4975, or breach (ii) failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement which, in the case of either of (i) or (ii), could subject the Seller or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISAexpense. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company Seller or any Affiliate, for all periods prior to the ClosingClosing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder2.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Duro Communications Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 3.7 of the RMSI Disclosure Letter sets forth a list of every material and significant Employee Program that is currently maintained by RMSI or an Affiliate of RMSI (as defined below"RMSI Affiliate") that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing"RMSI Employee Programs").
(b) Each RMSI Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and except as disclosed in Section 3.7 of the RMSI Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such RMSI Employee Program through and including the Closing Date (or, if earlier, the date that such RMSI Employee Program was terminated). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not knowNeither RMSI nor any RMSI Affiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the RMSI Employee Programs that have been maintained by the CompanyPrograms. With respect to any RMSI Employee Program ever maintained by the CompanyProgram, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) material failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject RMSI or any RMSI Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of RMSI, threatened with respect to any such RMSI Employee Program.
(d) Neither Except as disclosed in Section 3.7 of the Company RMSI Disclosure Letter, during the last 3 years, neither RMSI nor any ERISA RMSI Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there which has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA or Code Section 412 (other than a "RMSI Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ), or has ever promised to provide such post-termination benefits. Any Employee Program which , for a period of longer than 12 months or (iii) has been subject provided health care or any other non-pension benefits to Title IV any individuals who were previously employed by entities acquired by RMSI prior to the date of ERISA has been terminated in accordance with Section 4041 this Agreement for a period of ERISA and the regulations promulgated thereunderlonger than 12 months.
(e) With respect to each RMSI Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, complete and correct copies of the following documents (if applicable to such RMSI Employee Program) have previously been delivered or made available to AMGMerkxxx: (ix) all documents embodying or governing such RMSI Employee Program, and any funding medium for the RMSI Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such RMSI Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such RMSI Employee Program; (v) the summary plan description for such RMSI Employee Program (or 20 other descriptions of such RMSI Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such RMSI Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities with respect to any Employee Program subsequent to state or federal agency within the Closing (including, without limitation, health care continuation requirements)last three years.
(f) Each RMSI Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by RMSI to the Companygreatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any RMSI Employee Program (except claims incurred but not reported under any welfare plan and no condition exists which would limit the right of RMSI or any benefit described in Section 411(d)(6) of the Code)RMSI Affiliate to so amend, terminate or otherwise modify such RMSI Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements For purposes of this Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.Section 5.7:
Appears in 1 contract
Samples: Merger Agreement (Butler Bruce A)
Employee Benefit Programs. (a) Schedule 3.24 hereto 6.19 lists every Employee Program (as defined below) that has been maintained (as defined below) by United Solar or the Company Subsidiaries at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by United Solar or the Company Subsidiaries and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionsection (including, without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Company does not knowNeither United Solar nor any Subsidiary knows, and has no nor should any of them have reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by United Solar or the CompanySubsidiaries. With respect to any Employee Program ever maintained by United Solar or the CompanySubsidiaries, there has occurred no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to United Solar, the LLCSubsidiaries or the Company, Merger Sub (ii) failure to comply with any provision of ERISA, other applicable law, or AMGany agreement, or (iii) non-deductible contribution, which in the case of (i), (ii) or (iii), could subject United Solar or the Subsidiaries to liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties or taxes, or any other loss or expense. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by United Solar or the Company or any AffiliateSubsidiaries, for all periods prior to the ClosingClosing Date, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24d) Neither United Solar, no nor any Subsidiary (i) has ever maintained any Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA or Code Section 412 or ERISA Section 302 (other than a including, but not limited to, any Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by United Solar or the Company Subsidiaries within the three (3) six years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBekaert: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any registration statement or other filing made pursuant to any federal or state securities law; (vii) all correspondence to and from any state or federal agency within the last six years with respect to such Employee Program; (viii) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; (ix) the six most recent actuarial valuation reports completed with respect to each such Employee Program; and (viix) all other materials reasonably necessary for AMG the Company to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program required to be listed on Schedule 3.24 6.19 may be amended, terminated, modified or otherwise revised modified by United Solar or the CompanySubsidiaries to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan Employee Program document has failed to effectively reserve the right of United Solar or any benefit described in Section 411(d)(6) of the Code)Subsidiary to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program ever maintained by United Solar and the Subsidiaries (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times or federal and as a resultstate securities laws including, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by United Solar and the Subsidiaries has complied with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, and the Mental Health Parity Act 1996.
Appears in 1 contract
Samples: Foundation Agreement (Energy Conversion Devices Inc)
Employee Benefit Programs. (a) Schedule 3.24 SCHEDULE 2.22 hereto lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company or any of its Subsidiaries or Affiliates (as defined below) at any time during the threesix-year period ending on the date of the ClosingClosing date.
(b) Each Employee Program which has ever been maintained by the Company or any of its Subsidiaries or Affiliates and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Company does not know, know and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanyCompany or any of its Subsidiaries or Affiliates. With respect to any Employee Program ever maintained by the CompanyCompany or any of its Subsidiaries or Affiliates, there has occurred no "prohibited transaction," ", as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLCCompany, Merger Sub any Subsidiary, or AMGthe Purchasers. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the ClosingClosing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24SCHEDULE 2.22). Except .
(d) None of the Company, any Subsidiary or any Affiliate (as described in Schedule 3.24, no defined below) (i) has ever maintained any Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company or any Subsidiary within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available will be delivered to AMGthe Purchasers within 10 days of the date hereof: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG Parent and the Company or any Affiliate to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program required to be listed on Schedule 3.24 SCHEDULE 2.22 may be amended, terminated, modified or otherwise revised modified by the Companycompany to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan or any benefit described in Section 411(d)(6) Employee Program document has failed to effectively reserve the right of the Code)Company or the Subsidiary or Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program ever maintained by the Company or any of its Subsidiaries or Affiliates (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation state securities laws including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by the Company or any of its Subsidiaries or Affiliates has complied with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this Section:
Appears in 1 contract
Samples: Merger Agreement (Moldflow Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 3.12(a) of the Seller Disclosure Schedule sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the ClosingSeller or an ERISA Affiliate.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsuch. The Company does not knowExcept as would not, and has individually or in the aggregate, have a Seller Material Adverse Effect, no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any material redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Company does not knowNeither Seller nor any ERISA Affiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by Seller or any ERISA Affiliate. Except as would not, individually or in the Company. With aggregate, have a Seller Material Adverse Effect, with respect to any Employee Program ever maintained by the CompanySeller or any ERISA Affiliate, there has occurred been no "(i) “prohibited transaction," ” as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable Law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under of (i), (ii), or (iii), could subject Seller or any ERISA Affiliate to material liability either directly or other applicable law indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Seller, threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawLaw) with respect to all Employee Programs ever maintained by the Company Seller or any ERISA Affiliate, for all periods prior to the ClosingClosing Date, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no d) Neither Seller nor any ERISA Affiliate has within the past six years maintained an Employee Program maintained by the Company or an Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18)ERISA, as of the Closing Date. Neither the Company nor any Affiliate has ever maintained including a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or state continuation laws) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the ClosingSeller, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' ’ opinions attached thereto; (iv) the most recent actuarial valuation report completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG material correspondence to perform and from any of its responsibilities state or federal agency within the last three years with respect to any such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program required to be listed on Schedule 3.24 3.12(a) of the Seller Disclosure Schedule may be amended, terminated, modified or otherwise revised discontinued by Buyer after the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan Effective Time in accordance with its terms without material liability to Buyer or any benefit described in Section 411(d)(6) of the Code)its Subsidiaries.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Except as set forth in Section 4021(b)(133.12(g) of ERISA at all times and as the Seller Disclosure Schedule, neither Seller nor any of its Subsidiaries is a resultparty to any employment or consulting agreements with any current or former manager, was not director, officer, or employee which required make payment of cash compensation in the fiscal year ended April 30, 2007 in excess of $400,000.
(h) Except with respect to the agreements disclosed in Section 3.12(h) of the Seller Disclosure Schedule, neither Seller nor any filings of its Subsidiaries is a party to any written (i) agreement with any stockholders, director, or employee of Seller or any of its Subsidiaries (A) the Pension Benefit Guaranty Corporation including without limitationbenefits of which are contingent, filings in connection with or the terms of which are materially altered, upon the occurrence of a transaction involving Seller or any of its Subsidiaries of the nature of any of the transactions contemplated by this Agreement, (B) providing any guaranteed period of employment or compensation guarantee, or (C) providing severance benefits after the termination of employment of such director or employee; or (ii) agreement or plan binding Seller or any of its Subsidiaries, including any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, or severance benefit plan, any of the benefits of which shall be increased, or the vesting of the benefits of which shall be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which shall be calculated on the basis of any of the transactions contemplated by this Agreement. There is no contract, agreement, plan or arrangement covering any individual that, by itself or collectively, would give rise to any parachute payment subject to Section 280G of the Code, nor has Seller made any such payment, and the consummation of the transactions contemplated herein shall not obligate Seller or any other entity to make any parachute payment subject to Section 280G of the Code.
(i) Each Employee Program that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been operated in material compliance with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of Section 409A of the Code, the regulations and other guidance issued thereunder. No stock option granted under any Seller Stock Option Plan has any exercise price that was or may be less than the fair market value of the underlying stock as of the date the option was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option.
(j) For purposes of this section:
Appears in 1 contract
Samples: Merger Agreement (Ansys Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 4.19 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company or an ERISA Affiliate at any time during the three-year period ending on the date of the ClosingClosing Date (each Employee Program listed or required to be listed on Schedule 4.19 being referred to herein as a "Company Employee Program").
(b) Each Company Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Company Employee Program through and including the Closing Date (or, if earlier, the date that all of such Company Employee Program's assets were distributed). The Company does not knowTo the knowledge of the Company, and has no reason to know, of any event or omission that has occurred which would cause any such Company Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including, without limitation, Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Company Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Company Employee Program.
(c) The Each Company does not know, Employee Program has been maintained and has no reason to know, of any failure of any party to comply operated in all material respects in accordance with any the laws applicable with respect to the such Company Employee Programs that have been maintained by the CompanyProgram and all agreements related to such Company Employee Program. With respect to any Company Employee Program ever maintained by the CompanyProgram, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 Employee Retirement Income Security Act of the Code1974, as amended ("ERISA"), or breach Code Section 4975, or (ii) non-deductible contribution, which, in the case of any duty under of (i) or (ii), would subject the Company or any ERISA Affiliate to liability either directly or other applicable law indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of the Company, threatened with respect to any such Company Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Company Employee Programs ever maintained by the Company or any AffiliatePrograms, for all periods prior to the ClosingClosing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.244.19). .
(d) Except as described in set forth on Schedule 3.244.19, no neither the Company nor any ERISA Affiliate (i) has ever maintained any Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of or Code Section 412 or ERISA Section 4001(a)(18)302, as of the Closing Date. Neither the Company nor including, but not limited to, any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company Plan or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Company Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, complete and correct copies of the following documents (if applicable to such Company Employee Program) have previously been delivered, or made available available, to AMGParent: (i) all documents embodying or governing such Company Employee Program, and any funding medium for the Company Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Company Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such Company Employee Program; (v) the summary plan description for such Company Employee Program (or other descriptions of such Company Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Company Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership planfederal or state securities law; and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities state or federal agency within the last three years with respect to any such Company Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Company Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by the CompanyCompany to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Company Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) Program, and no employee communications have restricted the rights of the Code)Company or the ERISA Affiliate to so amend, terminate or otherwise modify such Company Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the Each Company Employee Program has been maintained in compliance in all material respects with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a resultstate securities laws including, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933, as amended, and/or state "Blue Sky" laws.
(h) Each Company Employee Program has complied in all material respects with the termination applicable notification and other applicable requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) The Company has terminated its 401(k) plan and fully vested all participants in such plan. The Company has accrued for the payment of all amounts payable under the incentive, bonus and retention plans and arrangements of the Company and its Subsidiaries (a true and complete list of which is set forth on Schedule 4.19), and all such plans and arrangements shall terminate as of the Effective Time. Schedule 4.19 sets forth a complete and accurate listing of all of the Management Severance Costs, and such Management Severance Costs represent all amounts payable by the Company or the Surviving Corporation to discharge in full its obligations under the Management Employment Agreements.
(j) For purposes of this section:
Appears in 1 contract
Samples: Merger Agreement (Cognex Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.24 sets forth a list of every Employee Program that has ------------- been maintained by Seller or an Affiliate (as defined below) that has been maintained (as defined below) by the Company at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company Seller or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Company does not know, and has no reason to know, Neither Seller nor any Affiliate knows of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever maintained by the CompanySeller or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject Seller or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company Seller or any Affiliate, for all periods prior to the ClosingClosing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.242.24). Except as described in Schedule 3.24, no -------------
(d) Neither Seller nor any Affiliate (i) has ever maintained any Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of or Code Section 412 or ERISA Section 4001(a)(18)302, as of the Closing Date. Neither the Company nor including, but not limited to, any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company Plan or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-post- termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company Seller within the three (3) six years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities state or federal agency within the last six years with respect to any such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program required to be listed on Schedule 3.24 2.24 may ------------- be amended, terminated, modified or otherwise revised modified by Seller to the Companygreatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan Employee Program document has failed to effectively reserve the right of Seller or any benefit described in Section 411(d)(6) of the Code)Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the Each Employee Program ever maintained by Seller (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation state securities laws including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by Seller or an Affiliate has complied with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 4.23 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller at any time during the three-year period ending on the date of the Closing.
(b) Each Employee Program which has ever been maintained by the Company Seller and which has at any time been intended to qualify under Section 401(a) or 501(c)(9of the Code, and each associated trust which at any time has been intended to be exempt from taxation pursuant to Section 501(a) of the Code has received is the subject of a favorable determination determination, opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification or exemption from taxation, as applicable, under such sectionsection and has, in fact, been qualified or tax exempt, as applicable, under the applicable section of the Code for all periods for which the applicable statute of limitations has not expired through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company Seller does not know, know and has no reason to know, of any failure of any party to comply in any material respect with any laws applicable to the Employee Programs that have been maintained by the CompanySeller. With respect to any Employee Program ever maintained by Seller for all periods for which the Companyapplicable statute of limitations has not expired, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or any material violation of, or material breach of any duty under under, ERISA or other applicable law (including, without limitation, any health care continuation requirements (under part 6 of subtitle B of Title I or ERISA, or otherwise) or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLCSeller, Merger Sub Buyer or AMGNextera. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Seller, threatened with respect to any such Employee Program.
(d) Neither the Company Seller nor any ERISA Affiliate (as defined below) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" ever (whether or not waivedi) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and which has been subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title Title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and ; (ii) no event maintained any Multiemployer Plan (as defined below); or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawiii) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ERISA or benefits that continue for a brief period of time after termination of employment, for example for the balance of the month in which an employee terminates, or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder).
(e) With respect to each Employee Program maintained by the Company Seller within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGNextera: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination determination, opinion or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9and 501(a), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG Buyer to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Neither Seller nor any ERISA Affiliate has any announced plan or legally binding commitment to create any additional Employee Program which is intended to cover employees or former employees of Seller or any ERISA Affiliate (with respect to their relationship with such entities) or to amend or modify any existing Employee Program which covers or has covered employees or former employees of Seller or any ERISA Affiliate (with respect to their relationship with such entities).
(g) Each Employee Program Plan listed on Schedule 3.24 4.23 may be amended, terminated, modified or otherwise revised prospectively by the Company, Seller including the elimination of any and all future benefit accruals under any Employee Plan.
(h) No event has occurred in connection with which Seller, any ERISA Affiliate or any Employee Program, directly or indirectly, could be subject to any material liability (A) under any statute, regulation or governmental order relating to any Employee Programs or (B) pursuant to any obligation of Seller or any ERISA Affiliate to indemnify any person against liability incurred under any such statute, regulation or order as they relate to the Employee Programs.
(i) Except as described on Schedule 4.23, neither the execution and delivery of this Agreement by Seller nor the consummation of the transactions contemplated hereby will result in the acceleration or creation of any rights of any person to benefits under any 32 Employee Program (except claims incurred but not reported including, without limitation, the acceleration of the vesting or exercisability of any stock options, the acceleration of the vesting of any restricted stock, or the acceleration or creation of any rights under any welfare plan severance, parachute or any benefit described change in Section 411(d)(6) of the Codecontrol agreement).
(gj) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program and related trust agreement or other funding instrument, as applicable, which covers or has covered employees or former employees of Seller or any ERISA Affiliate (with respect to their relationship with such entities) is legally valid and binding and in full force and effect.
(k) There is no contract, agreement, plan or arrangement covering any employee or former employee of Seller or any ERISA Affiliate (with respect to its relationship with such entities) that, individually or collectively, provides for the requirements payment by Seller or any ERISA Affiliate of any amount (i) that is not deductible under Section 4021(b)(13162(a)(1) or 404 of the Code or (ii) that is an "excess parachute payment" pursuant to Section 280G of the Code.
(l) All contributions required to be made by Seller or any ERISA at all times Affiliate with respect to any Employee Program due as of any date through and as a result, was not required make any filings with including the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination Closing Date have been made when due.
(m) For purposes of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 2.20 attached hereto lists sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company or an Affiliate at any time during the three-six- (6)- year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been is maintained by the Company or an Affiliate and which has at any time been is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service (“IRS”) regarding its qualification under such sectionSection and to the Company’s knowledge, nothing has occurred which would reasonably be expected to cause such Employee Program to fail to be so qualified under the applicable Section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program’s assets were distributed). The Company does not knowTo the Company’s knowledge, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification qualification, if applicable, or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any material redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Company does not know, and There has been no reason to know, of any failure of the Company or any party Affiliate to comply with any laws or agreements (other than insignificant or immaterial non-compliance) applicable with respect to the Employee Programs that have been are maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever that is maintained by the CompanyCompany or any Affiliate, there has occurred been no "(i) “prohibited transaction," ” as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) failure to comply in any material respect with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of either of (i) or (ii), could subject the Company or any duty under ERISA Affiliate to material liability either directly or other applicable law indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the Company’s knowledge, threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the ClosingClosing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.242.20 attached hereto).
(d) Neither the Company nor any Affiliate has incurred any liability under Title IV of ERISA which has not been paid in full prior to the Closing. Except as described in Schedule 3.24, There has been no “accumulated funding deficiency” (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an any Affiliate and subject to title Title IV of ERISA, there has been no (nor will there be any as a result of the transactions contemplated by this 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 the Company or any Affiliate to incur liability or have a lien imposed on its assets under Title IV of ERISA. No Employee Program maintained by the Company or any Affiliate and subject to Title IV of ERISA (other than a Multiemployer Plan) has any "“unfunded benefit liabilities" ” within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company or any Affiliate within the three six (36) years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMGBuyer: (i) all plan documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three six (36) most recently filed IRS Forms 5500, with all applicable schedules and accountants' ’ opinions attached thereto; (iv) the six (6) most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG material correspondence to perform and from any of its responsibilities state or federal agency within the last six (6) years with respect to any such Employee Program subsequent (but excluding routine correspondence with such agencies, or correspondence related to the Closing (including, without limitation, health care continuation requirementsworkers’ compensation claims).
(f) Each Employee Program required to be listed on Schedule 3.24 2.20 attached hereto may be amended, terminated, modified or otherwise revised modified by the CompanyCompany or Affiliate, as applicable, to the greatest extent permitted by applicable law; provided, however, that any such amendment, modification or termination may not adversely affect an employee’s rights to accrued benefits, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan or any benefit described in Section 411(d)(6) Employee Program document has failed to effectively reserve the right of the Code)Company to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Except as otherwise described on Schedule 2.20, each Employee Program maintained by the Company or any Affiliate (including each non-qualified deferred compensation arrangement) has been maintained in material compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation state securities laws including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933 (the “Securities Act”) and/or state “Blue Sky” laws.
(h) Each Employee Program ever maintained by the Company or any Affiliate has complied in all material respects with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns’ and Mothers’ Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women’s Health and Cancer Rights Act of 1998.
(i) For purposes of this Section 2.20: (i) “Employee Program” means (A) all employee benefit plans within the meaning of ERISA Section 3(3), including, but not limited to, multiple employer welfare arrangements (within the meaning of ERISA Section 3(40)), plans to
Appears in 1 contract
Samples: Merger Agreement (Inverness Medical Innovations Inc)
Employee Benefit Programs. (a) Section 3.12(a) of the FSB Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program (as defined below) that has been currently maintained by FSB, FSB's Bank or an Affiliate (as defined below) by the Company at any time during the three-year period ending on the date of the Closing).
(b) Each Employee Program which has ever been maintained by the Company FSB, FSB's Bank or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a), and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program that is qualified under Section 401(a) of the Code.
(c) The Company does not knowNone of FSB, and has no reason to FSB's Bank or any Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable to the Employee Programs that have been are currently maintained by the CompanyFSB, FSB's Bank or any Affiliate. With respect to any Employee Program ever currently maintained by the CompanyFSB, FSB's Bank or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 Employee Retirement Income Security Act of the Code1974, as amended ("ERISA"), or breach Code Section 4975, (ii) material failure to comply with any provision of ERISA, other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii) or other applicable law (iii), could subject FSB, FSB's Bank or any Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by FSB, FSB's Bank or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued.
(d) Neither the Company None of FSB, FSB's Bank nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company FSB, FSB's Bank or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company FSB, FSB's Bank or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction transactions contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and or (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company FSB, FSB's Bank or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no No Employee Program maintained by the Company FSB, FSB's Bank or an Affiliate and subject to title IV of ERISA (other than a Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company FSB, FSB's Bank nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company FSB, FSB's Bank or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the ClosingFSB, FSB's Bank or any Subsidiary, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBPFH: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three (3) most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all any registration statement or other materials reasonably necessary for AMG to perform any of its responsibilities with respect filing made pursuant to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)federal or state securities law.
(f) Each Employee Program required to be listed on in Section 3.12(a) of the FSB Disclosure Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by FSB, FSB's Bank or the CompanyAffiliate to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (Program, except claims incurred but not reported under any welfare plan or any benefit described as set forth in Section 411(d)(63.12(f) of the Code)FSB Disclosure Schedule and no employee communications or provision of any Employee Program document has failed effectively to reserve the right of FSB, FSB's Bank or the Affiliate to so amend, terminate, or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the Each Employee Program currently maintained by FSB or FSB's Bank (including each non-qualified deferred compensation arrangement) is maintained in material compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a resultstate securities laws, was not required make any filings with the Pension Benefit Guaranty Corporation including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act, and/or state "Blue Sky" laws.
(h) Each Employee Program currently maintained by FSB, FSB's Bank or an Affiliate has complied in all material respects with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this section:
Appears in 1 contract
Samples: Merger Agreement (Boston Private Financial Holdings Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.27 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company or an Affiliate (including, without limitation, any entity or business which the Company has acquired by asset purchase, stock purchase, merger, consolidation or other similar transaction) at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Neither the Company does not knownor any Affiliate knows, and has no reason to nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever maintained by the CompanyCompany or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 2.27).
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA any Affiliate and subject to title Title IV of ERISA, there has been no (nor will there be any as a result of the transaction transactions contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, 4043 or the regulations thereunder (thereunder, for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) by the regulations thereunder, and (ii) no event or condition which presents a material risk of a plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title Title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.242.27, no Employee Program maintained by the Company or an any Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) six years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities state or federal agency within the last six years with respect to any such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program required to be listed on Schedule 3.24 2.27 may be amended, terminated, modified or otherwise revised modified by the CompanyCompany to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.Employee Program
Appears in 1 contract
Samples: Stock Purchase Agreement (Marketing Specialists Corp)
Employee Benefit Programs. (a) Schedule SCHEDULE 3.24 hereto lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub Company or AMGthe Buyer. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs has ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or by any similar provision of state law) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGthe Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG the Buyer to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Samples: Asset Purchase Agreement (Boston Private Financial Holdings Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.21 sets forth a list of (1) every Employee Program (as defined below) that has been maintained (as defined below) by the Company or its Subsidiary and (2) every Employee Program maintained at anytime within the past five years which was subject to Title IV of ERISA. Except for the Employee Programs set forth on Schedule 2.21, the Company has no liability or potential liability for any time during the three-year period ending on the date of the ClosingEmployee Program maintained or contributed to by it, or by a current or former Affiliate.
(b) Each Except as set forth on Schedule 2.21, each Employee Program which has ever been maintained by the Company or its Subsidiary and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service (“IRS”) regarding its qualification under such sectionsection and any such Employee Program maintained at any time since 1999 has a favorable determination letter covering GUST. The Company does not knowNo such Employee Program has been disqualified under the applicable section of the Code from the effective date of the favorable determination letter for such Employee Program through and including the date hereof (or, and has if earlier, the date that all of such Employee Program’s assets were distributed). Except as set forth on Schedule 2.21, no reason to know, of any event or omission that has occurred which would could cause any such Employee Program to lose its qualification or tax exemption under the applicable Code section, and to the extent any event or omission is identified on Schedule 2.21, the Company has filed with the IRS for its approval of the Employee Program’s correction pursuant to the IRS Employee Plans Compliance Resolution System.
(c) The Company does not knowExcept as set forth on Schedule 2.21, and has there exists no reason to know, of any failure of any party to comply with any laws laws, regulations, ordinances, rules, governmental policies, policy statements, orders of any federal, state or local government or governmental department or agency (including without limitation, the IRS, PPUC and the FCC) applicable with respect to the any Employee Programs that have been maintained by the CompanyCompany or its Subsidiary. With The Company and its Subsidiary have complied with Section 4980B of the Code and Part 6 of Title 1 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and the regulations promulgated thereunder. Except as set forth on Schedule 2.21, with respect to any Employee Program ever maintained by the Company, its Subsidiary or any Affiliate thereof, there has occurred been no "“prohibited transaction," ” as defined in Section 406 of the ERISA or Code Section 4975 of the Code4975, or breach of any duty under ERISA or other applicable law or any agreement which could subject the Company or its Subsidiary to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirementsloss or expense. Except as set forth on Schedule 2.21, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, no litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee ProgramProgram and no facts exist which could give rise to litigation or such other proceeding. Except as set forth on Schedule 2.21, no Employee Program contributed to or maintained by the Company, or its Subsidiary or Affiliate thereof has participated in any voluntary correction program. Except as set forth on Schedule 2.21, each Employee Program contributed to or maintained by the Company, or its Subsidiary or Affiliate thereof has been and is operated and funded in such a manner as to qualify, where relevant and applicable, for both Federal and Pennsylvania State purposes, for income tax exclusions to its participants, tax-exempt income for its funding vehicle, and the allowance of deductions and credits with respect to contributions thereto. No under-funded defined benefit plan determined on a plan termination basis as provided in Title IV of ERISA has ever been transferred out of the controlled group of companies (within the meaning of Section 414(b) and (c) of the Code) of which the Company is a member.
(d) Neither Except as described in Schedule 2.21, neither the Company Company, its Subsidiary nor any Affiliate thereof, has ever maintained a defined benefit pension plan under Title IV of ERISA Affiliate or has incurred any liability under title Title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISAdate hereof. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) and all contributions for the current year which typically have been made in the past with respect to all Employee Programs ever maintained by the Company or any Affiliateits Subsidiary, for all periods prior to the Closingdate hereof, either have been made or have been properly accrued on the Company’s financial statements (and all such unpaid but accrued amounts are described on Schedule 3.242.21). Except as described in Schedule 3.242.21, no none of the Employee Program Programs maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate its Subsidiary has ever provided or promised health care or any other non-pension benefits to any former employees after their employment is terminated and/or retired or partially retired (other than as required by part Part 6 of subtitle B of title Title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder).
(e) With respect to each Employee Program maintained by the Company or its Subsidiary within the three (3) years preceding the Closingdate hereof, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGParent: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof, and any related funding vehicle which may exist for any such Employee Program; (ii) the most recent and any other material IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules attached thereto and accountants' opinions attached theretoany PBGC Form I filed within the three (3) years prior to the date hereof; (iv) the three most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any premium statements and summary pages of insurance policy (including any fiduciary liability insurance policy) policies related to such Employee Programs; (vii) a copy of any and all filings made with any government entity (including, but not limited to, the IRS, the Pension Benefit Guaranty Corporation (“PBGC”) and the Department of Labor) for the previous three years which relate to any such Employee Program; and (viviii) each other document, explanation or communication which describes any documents evidencing relevant and material aspect of any loan such plan that is not disclosed in previously delivered materials. A description of any unwritten Employee Program of the Company, including a description of any material terms of such Employee Program, is set forth on Schedule 2.21. With respect to an each Employee Program that involves or relates to medical benefits, the Company has furnished to Parent complete information (but on a de-identified basis as provided under relevant privacy laws) complete information about any COBRA beneficiaries (including individuals eligible to elect COBRA), about any individual claims that have exceeded $25,000 in the last year and/or which are expected to exceed $25,000 in the current year.
(f) Except as disclosed in Schedule 2.21 hereto, no collective bargaining agreement or other contract, written or oral, with any trade or labor union, employees’ association or similar organization is in effect as of the date hereof with respect to any employee of the Company or its Subsidiary, and neither the Company, its Subsidiary nor any Affiliate has ever maintained, participated in, or withdrawn from any multiemployer plan, as defined in Section 3(37) of ERISA a leveraged “multiple employer plan” within the meaning of Code Section 413(c), or a “multiple employer welfare arrangement” within the meaning of Section 3(f) of ERISA.
(g) Except as set forth on Schedule 2.21, the consummation of the Merger will not result in the payment, vesting or acceleration of any benefit including, without limitation, the payment of severance, retention pay, change of control payments, or stay bonuses to any person.
(h) No payment that is owed or that may become due to any director, officer, employee stock ownership planor agent of the Company or its Subsidiary will be non-deductible or become subject to Tax under Section 280G or 4999 of the Code; nor will there be any obligation to “gross up” or otherwise compensate any such person because of the imposition of any Tax on a payment to such person.
(i) The Company has the right to modify and terminate any and all benefits (other than pensions) with respect to both its retired and active employees and those of its Subsidiary.
(j) All employee and employer contributions have been timely made to all Employee Programs including, without limitation, the Bentleyville Communications Corp. Profit Sharing Plan.
(k) The Company has complied in a timely manner with all requirements applicable to top-heavy qualified plans, if applicable, including applicable contribution, accrual, and vesting requirements; and no qualified plan maintained or contributed to by the Company is top-heavy as of the Closing Date.
(viil) all other materials reasonably necessary All notices including, without limitation, ERISA Section 204(h) notices required by applicable law or regulation to be given to employees or former employees of the Company or its Subsidiary have been timely given, if applicable.
(m) Except as set forth on Schedule 2.21, no Employee Program of the Company has incurred an “accumulated funding deficiency” as defined in Section 302 of ERISA or Section 412 of the Code whether or not waived or has posted or is required to provide security under Code Section 4(1)(a)(29) or Section 307 of ERISA ; no event has occurred which has or could result in the imposition of a lien under Code Section 412 or Section 302 of ERISA nor has any liability to the PBGC (except for AMG payment of premiums) been incurred or to perform the knowledge of the Company reportable event within the meaning of Section 4043 of ERISA occurred with respect to any of its responsibilities such Employee Program except as disclosed on Schedule 2.21. There has been no unwaived reportable event with respect to any Employee Program subsequent of the Company; the transactions contemplated herein will not result in a reportable event within the meaning of Section 4043 of ERISA with respect to any such Employee Program and the Closing (including, without limitation, health care continuation requirements)PBGC has not threatened or taken steps to institute the termination of any such Employee Program.
(fn) Each With respect to all periods prior to the Closing, the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder (HIPAA), have been satisfied with respect to each affected Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by of the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(go) The GeoCapital Corporation Defined Benefit Pension Plan met Except as set forth on Schedule 2.21, no communication or disclosure has been made that at the requirements time made, did not accurately reflect the terms and operations of Section 4021(b)(13the subject Employee Program of the Company.
(p) For purposes of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Set forth on Schedule 3.24 hereto lists every 2.14 is a true and complete list of each Employee Program (as defined below) that has been and Multiemployer Plan maintained (as defined below) by the Company at any time during the three-year period ending on the date of the ClosingSellers or any affiliate of any of the Sellers.
(b) Each The Employee Program Programs which has ever been maintained by are "employee pension benefit plans" within the Company meaning of Section 3(2) of ERISA and which has at any time been are intended to qualify under meet the qualification requirements of Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section. The Company does not knownow meet, and has no reason to knowat all times since their inception have met the requirements for such qualification, and the related trusts are now, and at all times since their inception have been, exempt from taxation under Section 501(a) of any event or omission that has occurred which would cause any such the Code. No Employee Program is now or at any time has been subject to lose its qualification under the applicable Code sectionPart 3, Subtitle I of ERISA or Title IV of ERISA.
(c) The Company does To the Key Employees' knowledge, except as set forth in Schedule 2.23 attached hereto, there has not know, and has no reason to know, of been any failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by the CompanySellers or any of their affiliates. With To the Key Employee's knowledge, with respect to any Employee Program ever now or heretofore maintained by the CompanySellers or any of their affiliates, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectlyindirectly (including without limitation through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLCSellers or any of their affiliates. Except as set forth in Schedule 2.23 attached hereto, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) no Claim or other proceeding (other than those relating to routine claims for benefits) is pending or to the Key Employees' knowledge, threatened with respect to any such Employee Program. Except coverage mandated by law, no Employee Program provides medical, health or life insurance benefits beyond termination of service or retirement.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV The Sellers have heretofore delivered accurate and complete copies of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate all documents and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect instruments relating to each Employee Program maintained by the Company Sellers or any of their affiliates within the three (3) years preceding the Closingdate hereof, complete and correct copies of including, without limitation, the following documents (if applicable to such Employee Program) have previously been made available to AMG: ): (i) all documents embodying or governing each such Employee Program, and any funding medium for the each Employee Program (Program, including, without limitation, trust agreements) as they may have been amendedamended through the date hereof; (ii) the most recent IRS determination or approval letter with respect to each such Employee Program under Code Sections Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the current summary plan description for each such Employee Program (or other descriptions of such Employee Program provided to employees) and all any material modifications theretoto prior versions thereof within the last 18 months; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary trust agreements and insurance or annuity contracts relating to each such Employee Program; (viii) the Summary Annual Report for AMG the three most recent completed fiscal years or all such reports if such program is less than three years old, for each such Employee Program required to perform any of its responsibilities provide such report to participants; (ix) with respect to any Employee Program subsequent Multiemployer Plan, any participation or adoption agreement relating to any such participation in or contributions under such plan by the Closing Sellers or any of their affiliates; and (includingx) all records, without limitationnotices and filings concerning IRS or Department of Labor audits or investigations, health care continuation requirements)"prohibited transactions" within the meaning of Section 406 of ERISA or Section 4975 of the Code and "reportable events" within the meaning of Section 4043 of ERISA.
(fe) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in this Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.2.23:
Appears in 1 contract
Samples: Asset Purchase Agreement (Mediq Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists SCHEDULE 3.20 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company Buyer or an Affiliate at any time during the three-year period starting upon the organization of Seller and ending on the date of the Closing.
(b) . Each Employee Program which has ever been maintained by the Company Buyer or an Affiliate (as defined below) and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the date of the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section.
Section (cincluding, without limitation, Code Sections 105, 125, 401(a) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company501(c)(9)). With respect to any Employee Program ever maintained by the CompanySeller or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 of the Code4975, or breach (ii) failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement which, in the case of either of (i) or (ii), could subject Seller or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISAexpense. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company Seller or any Affiliate, for all periods prior to the date of the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunderSCHEDULE 3.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 4.12(a) of the Disclosure Schedules sets forth a true, complete and correct list of every Employee Program that is maintained, sponsored or contributed to by Seller or an ERISA Affiliate with respect to which Seller has any current or potential Liabilities (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing“Seller Employee Programs”).
(ba) Each Seller Employee Program which has ever been maintained by the Company and which has at any time been that is intended to qualify under Section 401(a) or 501(c)(9401 (a) of the Code has received and is entitled to rely upon a favorable determination or approval opinion letter from the IRS regarding its qualification under such section. The Company does not knowthereunder, and has and, to the Knowledge of Seller, no reason to know, of any event or omission that has occurred which that would reasonably be expected to cause any such Seller Employee Program to lose such qualification.
(b) Each Seller Employee Program complies in all material respects in form and in operation with Applicable Laws and regulations and has been administered in all material respects in accordance with Applicable Laws and regulations and with its qualification under the applicable Code sectionterms.
(c) The Company does not know, and None of Seller nor any ERISA Affiliates thereof has no reason to know, of any failure of any party to comply with any laws applicable to within the Employee Programs that have been past six (6) years maintained by the Company. With respect to any an Employee Program ever maintained by the Companythat is or was subject to Title IV of ERISA, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 412 of the Code, or breach Section 302 of any duty under ERISA or other applicable law (includingis a Multiemployer Plan, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company and none of Seller nor any ERISA Affiliate Affiliates thereof has incurred any liability under title Title IV of ERISA which that has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Planfull. None of the Seller Employee Programs ever maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits coverage to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or similar state Law or benefits in the nature of severance pay pursuant to an employment, severance or similar agreement that has been disclosed to Buyer) or to former employees and Seller has ever promised no obligation to provide such post-post termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(ed) With respect to each Seller Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, true, complete and correct copies of the following documents (if applicable to such Seller Employee Program) have previously been delivered or made available to AMG: Buyer, (i) all documents embodying or governing such Seller Employee Program, and any funding medium for the Seller Employee Program (including, without limitation, trust agreements) as they may have been amendedProgram; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRSopinion letter; (iii) the three (3) most recently filed IRS Forms Form 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the most recent actuarial valuation report; (v) the most recent summary plan description for such Employee Program or plan document (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; and (vi) all non-routine correspondence to and from any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Governmental Authority.
(fe) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in this Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.4.12:
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 4.12(a) of the Disclosure Schedules sets forth a true, complete and correct list of every Employee Program that is maintained by Seller or an ERISA Affiliate of Seller with respect to which Seller has any current or potential Liabilities (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing“Seller Employee Programs”).
(b) Each Seller Employee Program which has ever been maintained by the Company and which has at any time been that is intended to qualify under Section 401(a) or 501(c)(9401 (a) of the Code has received a favorable determination or approval may rely on an opinion letter from issued by the IRS regarding its qualification under with respect to a prototype plan adopted in accordance with the requirements for such section. The Company does not knowreliance, and has and, to the Knowledge of Seller, no reason to know, of any event or omission that has occurred which that would reasonably be expected to cause any such Seller Employee Program to lose its qualification under the applicable Code sectionsuch qualification.
(c) The Company does not know, Each Seller Employee Program is and has no reason to know, of any failure of any party to comply been operated in material compliance with any laws applicable to the Employee Programs that have Applicable Laws and regulations and is and has been maintained by the Company. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined administered in Section 406 of the ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, all material respects in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened accordance with respect to any such Employee ProgramApplicable Laws and regulations and with its terms.
(d) Neither the Company None of Seller nor any ERISA Affiliate Affiliates thereof has within the past six (6) years maintained an Employee Program that is or was subject to Title IV of ERISA, Section 412 of the Code, Section 302 of ERISA or is a Multiemployer Plan, and none of Seller nor any ERISA Affiliates thereof has incurred any liability under title Title IV of ERISA which that has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Planfull. None of the Seller Employee Programs ever maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits coverage to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or similar state Law or benefits in the nature of severance pay pursuant to an employment, severance or similar agreement that has been disclosed to Buyer) or to former employees and Seller has ever promised no obligation to provide such post-post termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Seller Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, true, complete and correct copies of the following documents (if applicable to such Seller Employee Program) have previously been delivered or made available to AMG: Buyer, (i) all documents embodying or governing such Seller Employee Program, and any funding medium for the Seller Employee Program (including, without limitation, trust agreements) as they may have been amendedProgram; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRSopinion letter; (iii) the three (3) most recently filed IRS Forms Form 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the most recent actuarial valuation report; (v) the most recent summary plan description for such Employee Program or plan document (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; and (vi) all non-routine correspondence to and from any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Governmental Authority.
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in this Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.4.12:
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Employee Benefit Programs. (a) Section 3.12(a) of the Seller Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller, the Seller's Bank or an Affiliate at any time during the three-year period ending on the date of the Closingthree years preceding this Agreement.
(b) Each Employee Program which has ever been maintained by the Company Seller, the Seller's Bank or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program that is qualified under Section 401(a) of the Code.
(c) The Company does not knowNone of the Seller, and has no reason to the Seller's Bank or any Affiliate knows, nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Employee Programs that have been are currently maintained by the CompanySeller, the Seller's Bank or any Affiliate. With respect to any Employee Program ever currently maintained by the CompanySeller, the Seller's Bank or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 Employee Retirement Income Security Act of the Code1974, as amended ("ERISA"), or breach Code Section 4975, (ii) material failure to comply with any provision of ERISA, other applicable law, or any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Seller, the Seller's Bank or any Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Seller, the Seller's Bank or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued 16 22 (and all such unpaid but accrued amounts are described on Section 3.12(c) of the Seller Disclosure Schedule).
(d) Neither None of the Company Seller, the Seller's Bank nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company Seller, the Seller's Bank or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company Seller, the Seller's Bank or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company Seller, the Seller's Bank or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no No Employee Program maintained by the Company Seller, the Seller's Bank or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company Seller, the Seller's Bank nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company Seller, the Seller's Bank or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company Seller, the Seller's Bank or any Subsidiary within the three (3) years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGthe Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all any registration statement or other materials reasonably necessary for AMG to perform any of its responsibilities with respect filing made pursuant to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)federal or state securities law.
(f) Each Employee Program required to be listed on Section 3.12(a) of the Seller Disclosure Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by the CompanySeller, the Seller's Bank or the Affiliate to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.Employee Program document has failed to effectively reserve
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 3.23 lists every Employee Program (as defined below) that ------------- has been maintained (as defined below) by the Company MMA, RTS or any Subsidiary at any time during the three-year period ending on the date of the Closing.
(b) Each Employee Program which has ever been maintained by MMA, RTS or any Subsidiary during the Company past seven years and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and no such determination or approval letter has been revoked nor, to the knowledge of MMA and Sellers, is there any reason for such revocation from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, and Neither MMA nor Sellers knows or has no reason to know, know of any failure of any party to comply in any material respect with any laws applicable to the Employee Programs that have been maintained by MMA, RTS or any Subsidiary. To the Companyknowledge of MMA and Sellers, each Employee Program that has been maintained by MMA, RTS or any Subsidiary has been maintained, operated and administered in compliance in all material respects with its terms and with any related documents or agreements. With respect to any Employee Program ever maintained by the CompanyMMA, RTS or any Subsidiary, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any material taxes, penalties or other liability to the LLCBuyers, Merger Sub MMA, RTS or AMGany Subsidiary. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate All contributions to, and subject to Code Section 412 or ERISA Section 302. With respect to payments from, any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISAMMA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination RTS or any other event Subsidiary that may cause have been required in accordance with the Company terms of such Employee Program have been timely made or are properly accrued, to the extent required. Any insurance premium under any insurance policy related to an Employee Program for any period up to and including the Closing Date shall have been paid before the Closing Date.
(e) None of MMA, RTS, any Subsidiary or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of as defined below) while an ERISA Affiliate (i) has, at any agreements or other governing documents or applicable law) with respect to all Employee Programs ever time after January 1, 1992, maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title Title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-post- termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunderbenefits that could impose a monetary obligation or material non- monetary obligation after Closing upon Buyers, MMA, RTS or any Subsidiary.
(ef) With respect to each Employee Program maintained by the Company MMA, RTS or any Subsidiary within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGMMA Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG MMA Buyer to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(fg) Each Employee Program listed on Schedule 3.24 3.23 may be amended, ------------- terminated, modified or otherwise revised by the CompanyMMA, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan RTS or any benefit described in Section 411(d)(6Subsidiary (as the case may be) of the Code)subject to compliance with applicable law.
(gh) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements For purposes of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Friedman Billings Ramsey Group Inc)
Employee Benefit Programs. (a) Schedule 3.24 3.12 attached hereto lists every Employee Program (as ------------- defined below) that has been maintained (as defined below) by the Company SSA and/or Xxxxxx at any time during the three-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company SSA and/or Xxxxxx and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company SSA and/or Xxxxxx does not know, know and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanySSA and/or Xxxxxx. With respect to any Employee Program ever maintained by the CompanySSA and/or Xxxxxx, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to SSA, Xxxxxx, the LLCSSA Surviving Corporation, Merger Sub the Xxxxxx Surviving Corporation or AMGParent. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company SSA or Xxxxxx nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs has ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-post- termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company SSA and/or Xxxxxx within the three years (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGParent: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG the SSA Surviving Corporation, Xxxxxx Surviving Corporation and Parent to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Samples: Merger Agreement (Mac-Gray Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 3.20 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closingsince January 1, 1995.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a401 (a) or 501(c)(9Section 501 (c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and, to the best knowledge of the Company, has in fact, been continuously qualified under the applicable section of the Code since the effective date of such Employee Program. The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, and Each Employee Program that has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have ever been maintained by the CompanyCompany has been maintained in material compliance with all applicable laws. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 Section406 of the ERISA or Section 4975 of the CodeCode (for which there exists neither a statutory nor regulatory exception), or material breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan or to any person in regard to such plan), which could result, directly or indirectlyindirectly (including, without limitation, through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLC, Merger Sub Company or AMGany of its affiliates. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the best knowledge of the Company, threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate (i) has incurred ever maintained any liability under title Employee Program which has been subject to Title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this AgreementCode (including, but not limited to, any Multiemployer Plan) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title Title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by or on behalf of the Company or any Affiliate within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMGthe Purchaser: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) ), as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or Section 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy and any excess loss policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG the Company to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each With respect to each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised maintained by the CompanyCompany or its Affiliates, including no event has occurred, and there exists no condition or current set of circumstances in connection with which the elimination of Company could, directly or indirectly (through a Commonly Controlled Entity or otherwise), be subject to any and all future benefit accruals liability under any Employee Program (except claims incurred but not reported under any welfare plan ERISA, the Code or any benefit described other applicable law, except liability for benefits claims and funding obligations payable in Section 411(d)(6) of the Code)ordinary course.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program maintained by the requirements of Company or Affiliate that is a "group health plan" (as defined in ERISA Section 4021(b)(13607(1) of ERISA or Code Section 5001(b)(1)) has been operated at all times and as a result, was not required make any filings in compliance with the Pension Benefit Guaranty Corporation including without limitationprovisions of COBRA and any applicable similar state law.
(h) The consummation of the transactions contemplated by this Agreement will not: (i) entitle any current or former employee to severance pay, filings unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due to, or in connection respect of, any current or former employee; (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an "excess parachute payment" within the termination meaning of such planCode 280G(b); or (iv) constitute or involve a prohibited transaction (as defined in ERISA Section 502(1)) or otherwise violate Part 4 of Subtitle B of Title I of ERISA.
Appears in 1 contract
Samples: Stock Purchase Agreement (Optimark Technologies Inc)
Employee Benefit Programs. (a) Schedule 3.24 2.24 hereto lists sets forth a list of every Employee Program ------------- (as defined belowhereinafter defined) that has been maintained (as defined below) by the Company Black & White or to which Black & White has contributed at any time during the three-year period beginning on the date of incorporation and ending on the date hereof and (i) is subject to the Employee Retirement Income Security Act of 1974, as amended, and the Closingregulations promulgated thereunder or otherwise, (ii) involves the issuance of options or other securities, or (iii) is otherwise material.
(b) Each To the knowledge of the Stockholder and the Beneficial Owners, the terms and operation of each Employee Program comply in all material respects with all applicable laws and regulations relating to such Employee Program. There are no unfunded obligations of Black & White under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Employee Program which has ever been maintained by the Company Black & White and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionSection (or an application for such a determination or approval letter is not yet due to be filed with the IRS with respect to any "disqualifying provision" within the meaning of Treasury Regulation, Section 1.401(b)-1 or has been timely filed and is pending with the IRS) and has, in fact, been qualified under the applicable Section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section. Black & White is not required to make any payments or contributions to any Employee Program pursuant to any collective bargaining agreement or any applicable labor relations law, and, except with respect to outstanding Options and the Black & White 401(k) Plan, all Employee Programs are terminable at the discretion of Black & White without liability to Black & White upon or following such termination. Black & White has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to terminated employees.
(c) The Company does not knowAs used herein, and has no reason to know"Employee Program" shall mean any employee benefit or welfare plan, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Companystock option, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA bonus or Section 4975 of the Codeincentive plan, severance pay policy or breach of any duty under ERISA or other applicable law (includingagreement, without limitation, any health care continuation requirements deferred compensation agreement or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare similar plan or any benefit described in Section 411(d)(6) of the Code)agreement.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 3.7 of the RMSI Disclosure Letter sets forth a list of every material and significant Employee Program that is currently maintained by RMSI or an Affiliate of RMSI (as defined below"RMSI Affiliate") that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing"RMSI Employee Programs").
(b) Each RMSI Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and except as disclosed in Section 3.7 of the RMSI Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such RMSI Employee Program through and including the Closing Date (or, if earlier, the date that such RMSI Employee Program was terminated). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not knowNeither RMSI nor any RMSI Affiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the RMSI Employee Programs that have been maintained by the CompanyPrograms. With respect to any RMSI Employee Program ever maintained by the CompanyProgram, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) material failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject RMSI or any RMSI Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of RMSI, threatened with respect to any such RMSI Employee Program.
(d) Neither Except as disclosed in Section 3.7 of the Company RMSI Disclosure Letter, during the last 3 years, neither RMSI nor any ERISA RMSI Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there which has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA or Code Section 412 (other than a "RMSI Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ), or has ever promised to provide such post-post- termination benefits. Any Employee Program which , for a period of longer than 12 months or (iii) has been subject provided health care or any other non-pension benefits to Title IV any individuals who were previously employed by entities acquired by RMSI prior to the date of ERISA has been terminated in accordance with Section 4041 this Agreement for a period of ERISA and the regulations promulgated thereunderlonger than 12 months.
(e) With respect to each RMSI Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, complete and correct copies of the following documents (if applicable to such RMSI Employee Program) have previously been delivered or made available to AMGMerkxxx: (ix) all documents embodying or governing such RMSI Employee Program, and any funding medium for the RMSI Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such RMSI Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such RMSI Employee Program; (v) the summary plan description for such RMSI Employee Program (or other descriptions of such RMSI Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.modifications
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 3.23 lists every Employee Program (as defined below) that has ------------- been maintained (as defined below) by the Company MMA, RTS or any Subsidiary at any time during the three-year period ending on the date of the Closing.
(b) Each Employee Program which has ever been maintained by MMA, RTS or any Subsidiary during the Company past seven years and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and no such determination or approval letter has been revoked nor, to the knowledge of MMA and Sellers, is there any reason for such revocation from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, and Neither MMA nor Sellers knows or has no reason to know, know of any failure of any party to comply in any material respect with any laws applicable to the Employee Programs that have been maintained by MMA, RTS or any Subsidiary. To the Companyknowledge of MMA and Sellers, each Employee Program that has been maintained by MMA, RTS or any Subsidiary has been maintained, operated and administered in compliance in all material respects with its terms and with any related documents or agreements. With respect to any Employee Program ever maintained by the CompanyMMA, RTS or any Subsidiary, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any material taxes, penalties or other liability to the LLCBuyers, Merger Sub MMA, RTS or AMGany Subsidiary. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate All contributions to, and subject to Code Section 412 or ERISA Section 302. With respect to payments from, any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISAMMA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination RTS or any other event Subsidiary that may cause have been required in accordance with the Company terms of such Employee Program have been timely made or are properly accrued, to the extent required. Any insurance premium under any insurance policy related to an Employee Program for any period up to and including the Closing Date shall have been paid before the Closing Date.
(e) None of MMA, RTS, any Subsidiary or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of as defined below) while an ERISA Affiliate (i) has, at any agreements or other governing documents or applicable law) with respect to all Employee Programs ever time after January 1, 1992, maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title Title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunderbenefits that could impose a monetary obligation or material non-monetary obligation after Closing upon Buyers, MMA, RTS or any Subsidiary.
(ef) With respect to each Employee Program maintained by the Company MMA, RTS or any Subsidiary within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGMMA Buyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG MMA Buyer to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(fg) Each Employee Program listed on Schedule 3.24 3.23 may be amended, terminated, ------------- modified or otherwise revised by the CompanyMMA, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan RTS or any benefit described in Section 411(d)(6Subsidiary (as the case may be) of the Code)subject to compliance with applicable law.
(gh) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements For purposes of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Friedman Billings Ramsey Group Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto 2.24 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9of the Code, and each associated trust which at any time has been intended to be exempt from taxation pursuant to Section 501(a) of the Code has received is the subject of a favorable determination determination, opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification or exemption from taxation, as applicable, under such sectionsection and has, in fact, been qualified or tax exempt, as applicable, under the applicable section of the Code for all periods for which the applicable statute of limitations has not expired through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, know and has no reason to know, of any failure of any party to comply in any material respect with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the CompanyCompany for all periods for which the applicable statute of limitations has not expired, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or any material violation of, or material breach of any duty under under, ERISA or other applicable law (including, without limitation, any health care continuation requirements (under part 6 of subtitle B of Title I or ERISA, or otherwise) or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto SCHEDULE 5.20 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, know and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub Company or AMGZoll. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs has ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGZoll: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; and (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 2.24 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the ClosingClosing Date. The Company has not maintained any Employee Programs other than those disclosed on Schedule 2.24.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been that is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received is subject to a favorable determination or approval opinion letter from the IRS Internal Revenue Service (“IRS”) regarding its qualification under such section. The section and the Company does is not know, and has no reason to know, aware of any event or omission circumstances that has occurred which would cause any are reasonably likely to result in the revocation of such opinion letter. No Employee Program to lose its qualification under the applicable is funded through an organization described in Code sectionSection 501(c)(9).
(c) The Company does not know, know and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Company, there has occurred no "“prohibited transaction," ” as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Code Section 4975 of the Code4975, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.any
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs has ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care care, life insurance or any other non-pension welfare type benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or similar state law) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGParent: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter opinion letter, if any, with respect to such Employee Program under Code Sections Section 401 or 501(c)(9(a), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, if any, with all applicable schedules and accountants' ’ opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials that are reasonably necessary for AMG Parent to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 5.7 of the Xxxxxxx Disclosure Letter sets forth a list of every material and significant Employee Program that is currently maintained by Xxxxxxx or an Affiliate of Xxxxxxx (as defined belowa "Xxxxxxx Affiliate") that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing"Xxxxxxx Employee Programs").
(b) Each Xxxxxxx Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and except as disclosed in Section 5.7 of the Xxxxxxx Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such Xxxxxxx Employee Program through and including the Closing Date (or, if earlier, the date that such Xxxxxxx Employee Program). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Xxxxxxx Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not knowNeither Xxxxxxx nor any Xxxxxxx Affiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Xxxxxxx Employee Programs that have been maintained by the CompanyPrograms. With respect to any Xxxxxxx Employee Program ever maintained by the CompanyProgram, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) material failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject Xxxxxxx or any Xxxxxxx Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Xxxxxxx, threatened with respect to any such Xxxxxxx Employee Program.
(d) Neither Except as disclosed in Section 5.7 of the Company Xxxxxxx Disclosure Letter, during the last 3 years, neither Xxxxxxx nor any ERISA Xxxxxxx Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there which has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA or Code Section 412 (other than a "Xxxxxxx Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ), or has ever promised to provide such post-termination benefits. Any Employee Program which , for a period longer than 12 months or (iii) has been subject provided health care or any other non-pension benefits to Title IV any individuals who were previously employed by entities acquired by Xxxxxxx prior to the date of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunderthis Agreement for a period longer than 12 months.
(e) With respect to each Xxxxxxx Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, complete and correct copies of the following documents (if applicable to such Xxxxxxx Employee Program) have previously been made available delivered to AMGRMSI: (i) all documents embodying or governing such Xxxxxxx Employee Program, and any funding medium for the Xxxxxxx Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Xxxxxxx Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such Xxxxxxx Employee Program; (v) the summary plan description for such Xxxxxxx Employee Program (or other descriptions of such Xxxxxxx Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Xxxxxxx Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities with respect to any Employee Program subsequent to state or federal agency within the Closing (including, without limitation, health care continuation requirements)last three years.
(f) Each Xxxxxxx Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by Xxxxxxx to the Companygreatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Xxxxxxx Employee Program (and, except claims incurred but not reported under any welfare plan or any benefit described in as disclosed on Section 411(d)(6) 5.7 of the Code)Xxxxxxx Disclosure Letter, no condition exists which would limit the right of Xxxxxxx or the Xxxxxxx Affiliate to so amend, terminate or otherwise modify such Xxxxxxx Employee Program.
(g) No liability under Title IV or Section 302 of ERISA has been incurred by Xxxxxxx or any Xxxxxxx Affiliate that has not been satisfied in full and no condition exists that presents a material risk to Xxxxxxx or any Xxxxxxx Affiliate of incurring any such liability, other than liability for premiums due to the PBGC (which premiums have been paid when due).
(h) The GeoCapital Corporation Defined Benefit Pension PBGC has not instituted proceedings to terminate any Xxxxxxx Title IV Plan met and no condition exists that presents a material risk that such proceedings will be instituted.
(i) Except as disclosed in Section 5.7 of the requirements Xxxxxxx Disclosure Letter, with respect to each Xxxxxxx Title IV Plan, the present value of accrued benefits under such plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan's actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(j) No Xxxxxxx Title IV Plan or any trust established there under has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Xxxxxxx Title IV Plan ended prior to the Closing Date.
(k) No amounts payable under the Xxxxxxx Employee Programs will fail to be deductible for federal income tax purposes by virtue of Section 4021(b)(13162(a)(1), 162(m) or 280G of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such planCode.
Appears in 1 contract
Samples: Merger Agreement (Richmont Marketing Specialists Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 3.20 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closingsince January 1, 1995.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or Section 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and, to the best knowledge of the Company has, in fact, been continuously qualified under the applicable section of the Code since the effective date of such Employee Program. The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, and Each Employee Program that has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have ever been maintained by the CompanyCompany has been maintained in compliance with all applicable laws. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 of the CodeCode (for which there exists neither a statutory nor regulatory exception), or material breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan or to any person in regard to such plan), which could result, directly or indirectlyindirectly (including, without limitation, through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLC, Merger Sub Company or AMGany of its affiliates. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the best knowledge of the Company, threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate (i) has incurred ever maintained any liability under title Employee Program which has been subject to Title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this AgreementCode (including, but not limited to, any Multiemployer Plan) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title Title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by or on behalf of the Company or any Affiliate within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMGthe Purchasers: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) ), as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or Section 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy and any excess loss policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG the Company to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each With respect to each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised maintained by the CompanyCompany or its Affiliates, including no event has occurred, and there exists no condition or set of circumstances in connection with which the elimination of Company could, directly or indirectly (through a Commonly Controlled Entity or otherwise), be subject to any and all future benefit accruals liability under any Employee Program (except claims incurred but not reported under any welfare plan ERISA, the Code or any benefit described other applicable law, except liability for benefits claims and funding obligations payable in Section 411(d)(6) of the Code)ordinary course.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program maintained by the requirements of Company or Affiliate that is a "group health plan" (as defined in ERISA Section 4021(b)(13607(1) of ERISA or Code Section 5001(b)(1)) has been operated at all times and as a result, was not required make any filings in compliance with the Pension Benefit Guaranty Corporation including without limitationprovisions of COBRA and any applicable, filings similar state law.
(h) The consummation of the transactions contemplated by this Agreement will not: (i) entitle any current or former employee to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due to, or in connection respect of, any current or former employee; (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an "excess parachute payment" within the termination meaning of such planCode Section 280G(b); or (iv) constitute or involve a prohibited transaction (as defined in ERISA Section 502(1)) or otherwise violate Part 4 of Subtitle B of Title I of ERISA.
Appears in 1 contract
Samples: Series B Stock Purchase Agreement (Optimark Technologies Inc)
Employee Benefit Programs. (a) Section 4.13(a) of the CombinatoRx Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program maintained by CombinatoRx or an ERISA Affiliate of CombinatoRx (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing“CombinatoRx Employee Programs”).
(b) Each CombinatoRx Employee Program which has ever been maintained by the Company and which has at any time been is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsuch. The Company does not know, and has no reason to know, of any No event or omission that has occurred which would reasonably be expected to cause any such CombinatoRx Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)).
(c) The Company does not knowNeither CombinatoRx nor any ERISA Affiliate of CombinatoRx knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by CombinatoRx or any ERISA Affiliate of CombinatoRx. Except as would not, individually or in the Company. With aggregate, have a CombinatoRx Material Adverse Effect, with respect to any Employee Program ever maintained by the CompanyCombinatoRx or any ERISA Affiliate of CombinatoRx, there has occurred been no "(i) “prohibited transaction," ” as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable Laws, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirementsagreement, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG(iii) non deductible contribution. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of CombinatoRx, threatened with respect to any such CombinatoRx Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawLaws) with respect to all Employee Programs ever maintained by the Company CombinatoRx or any AffiliateERISA Affiliate of CombinatoRx, for all periods prior to the ClosingClosing Date, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no d) Neither CombinatoRx nor any ERISA Affiliate of CombinatoRx has maintained an Employee Program maintained by the Company or an Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18)ERISA, as of the Closing Date. Neither the Company nor any Affiliate has ever maintained including a Multiemployer Plan. None of the CombinatoRx Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or state continuation laws) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program required to be listed on Section 4.13(a) of the CombinatoRx Disclosure Schedule 3.24 may be amended, terminated, modified or otherwise revised discontinued by CombinatoRx after the Effective Time in accordance with its terms without material liability to CombinatoRx, Neuromed or any of their respective Subsidiaries.
(f) Except as set forth in Amendment No. 1 to CombinatoRx’s Annual Report on Form 10-K, which was filed with the SEC on April 30, 2009, neither CombinatoRx nor any of its Subsidiaries is a party to any written (i) agreement with any stockholders, director, or employee of CombinatoRx or any of its Subsidiaries (A) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving CombinatoRx or any of its Subsidiaries of the nature of any of the transactions contemplated by this Agreement, (B) providing any guaranteed period of employment or compensation guarantee, or (C) providing severance benefits after the termination of employment of such director or employee; or (ii) agreement or plan binding CombinatoRx or any of its Subsidiaries, including any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, or severance benefit plan, any of the benefits of which shall be increased, or the vesting of the benefits of which shall be accelerated, by the Company, including the elimination occurrence of any and all future benefit accruals under of the transactions contemplated by this Agreement or the value of any Employee Program (except claims incurred but not reported under of the benefits of which shall be calculated on the basis of any welfare of the transactions contemplated by this Agreement. There is no contract, agreement, plan or arrangement covering any benefit described in individual that, by itself or collectively, would give rise to any parachute payment subject to Section 411(d)(6) 280G of the Code), nor has CombinatoRx made any such payment, and the consummation of the transactions contemplated herein shall not obligate CombinatoRx or any other entity to make any parachute payment that would be subject to Section 280G of the Code.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each CombinatoRx Employee Program that is a “nonqualified deferred compensation plan” within the requirements meaning of Section 4021(b)(13409A of the Code has been operated in material compliance with Section 409A of the Code, based upon a good faith, reasonable interpretation of Section 409A of the Code, the regulations and other guidance issued thereunder. No stock option granted under any CombinatoRx Stock Option Plan has any exercise price that was less than the fair market value of the underlying stock as of the date the option was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option.
(h) For purposes of this Section 4.13:
(i) An entity “maintains” an Employee Program if such entity sponsors, contributes to, or provides benefits under or through such Employee Program, or has any obligation (by agreement or under applicable Laws) to contribute to or provide benefits under or through such Employee Program, or if such Employee Program provides benefits to or otherwise covers employees of such entity (or their spouses, dependents, or beneficiaries).
(ii) An entity is an “ERISA Affiliate” of CombinatoRx if it would have ever been considered a single employer with CombinatoRx under ERISA Section 4001(b) or part of the same “controlled group” as CombinatoRx for purposes of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such planSection 302(d)(8)(C).
Appears in 1 contract
Samples: Merger Agreement (Combinatorx, Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.27 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company or an Affiliate (including, without limitation, any entity or business which the Company or any Subsidiary has acquired by asset purchase, stock purchase, merger, consolidation or other similar transaction) at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not knowExcept as set forth on Schedule 2.27, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Except as set forth on Schedule 2.27, each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Except as set forth on Schedule 2.27, neither the Company does not knownor any Affiliate knows, and has no reason to nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever maintained by the CompanyCompany or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirementsloss or expense. Except as disclosed on Schedule 2.27, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, no litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.either
Appears in 1 contract
Samples: Stock Purchase Agreement (Marketing Specialists Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.23 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller or an Affiliate at any time during the threesix-year period ending on the date of the Closing.
(b) Closing Date. Each Employee Program which has ever been maintained by the Company Seller or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code") has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section.
Section (cincluding without limitation Code Sections 105, 125, 401(a) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company501(c)(9)). With respect to any Employee Program ever maintained by the CompanySeller or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 of the Code4975, or breach (ii) failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement which, in the case of either of (i) or (ii), could subject Seller or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISAexpense. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company Seller or any Affiliate, for all periods prior to the ClosingClosing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder2.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Duro Communications Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto 2.24 lists every Employee Program (as defined below) that ------------- has been maintained (as defined below) by the Company Seller at any time during the three-three- year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company Seller or an Affiliate (as defined below) and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been continuously qualified under the applicable section of the Code since the effective date of such Employee Program through and including the Closing Date (or if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No material event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company Seller does not know, and has no reason to know, of any material failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanySeller. With respect to any Employee Program ever maintained by the CompanySeller or any Affiliate, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectlyindirectly (including, without limitation, through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLC, Merger Sub or AMGBuyer. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of Seller or the Principals, threatened with respect to any such Employee Program.
(d) Neither the Company Seller nor any ERISA Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to ever maintained any Employee Program ever maintained by the Company or any Affiliate and which has been subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title Title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company Seller within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG Buyer to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 5.13(a) sets forth a true, complete and correct list of every Employee Program that is maintained by Seller or any ERISA Affiliate or with respect to which Seller or any ERISA Affiliate has or may have any liability (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing“Seller Employee Programs”).
(b) Each True, complete and correct copies of the following documents, with respect to each Seller Employee Program, where applicable, have been made available to Parent: (i) all documents embodying or governing such Seller Employee Program which has ever been maintained by and any funding medium for the Company Seller Employee Program; (ii) the most recent IRS determination or opinion letter; (iii) the most recently filed IRS Form 5500; (iv) the most recent actuarial valuation report; (v) the most recent summary plan description (or other descriptions provided to employees) and which has at all modifications thereto; and (vi) all non-routine correspondence to and from any time been state or federal agency since January 1, 2004.
(c) Each Seller Employee Program that is intended to qualify under Section 401(a) or 501(c)(9) of the Code is so qualified and has received a favorable determination or approval letter from the IRS regarding its qualification under with respect to such section. The Company does qualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance, or has time remaining for application to the IRS for a determination of the qualified status of such Seller Employee Program for any period for which such Seller Employee Program would not know, otherwise be covered by an IRS determination and has no reason to know, of any event or omission that has occurred which that would cause any such Seller Employee Program to lose its qualification under the applicable Code sectionsuch qualification.
(ci) The Company does not knowEach Seller Employee Program is, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectlyoperated, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. material compliance with applicable laws and regulations and is and has been administered in all material respects in accordance with applicable laws and regulations and with its terms.
(ii) No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) proceeding, audit or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Seller, threatened with respect to any Seller Employee Program or any fiduciary thereof, and, to the knowledge of Seller, there is no reasonable basis for any such Employee Programlitigation or proceeding.
(diii) Neither All payments and/or contributions required to have been made with respect to all Seller Employee Programs either have been made or have been accrued in accordance with the Company terms of the applicable Seller Employee Program and applicable law.
(e) No Seller Employee Program is a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which Seller or any ERISA Affiliate could incur liability under Section 4063 or 4064 of ERISA or a plan maintained by more than one employer as described in Section 413(c) of the Code.
(f) Since January 1, 2004, neither Seller nor any ERISA Affiliate has ever maintained any Seller Employee Program that is or was subject to Title IV of ERISA, Section 412 of the Code, Section 302 of ERISA or is a Multiemployer Plan and neither Seller nor any ERISA Affiliate has incurred any liability under title Title IV of ERISA which that has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" full.
(whether or not waivedg) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Except as set forth in Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result 5.13(g) of the transaction contemplated by this Agreement) (i) "reportable event," within Seller Disclosure Schedule, none of the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Seller Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided provides health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part Part 6 of subtitle Subtitle B of title Title I of ERISAERISA or similar state law) or and Seller has ever never promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(ei) With respect to each Each Seller Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by Seller to the Companygreatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under thereunder and no employee communications or provision of any Seller Employee Program has failed to effectively reserve the right of Seller or the ERISA Affiliate to so amend, terminate or otherwise modify such Seller Employee
(except claims incurred but not reported ii) Neither Seller nor any of its ERISA Affiliates has announced its intention to modify or terminate any Seller Employee Program or adopt any arrangement or program which, once established, would come within the definition of a Seller Employee Program.
(iii) Each asset held under each Seller Employee Program may be liquidated or terminated without the imposition of any welfare redemption fee, surrender charge or comparable liability.
(i) The per share exercise price of each Seller Stock Option was no less than the fair market value of a share of Seller Common Stock on the date of grant of such Seller Stock Option (and as of each later modification thereof within the meaning of Section 409A of the Code) determined in a manner consistent with Section 409A of the Code.
(ii) Each Seller Employee Program that constitutes in any part a nonqualified deferred compensation plan or any benefit described within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(j) Except as set forth in Section 411(d)(65.13(j) of the Code)Seller Disclosure Schedule, to Seller’s knowledge, no Seller Employee Program is subject to the laws of any jurisdiction outside the United States.
(gk) Neither the execution and delivery of this Agreement, the shareholder approval of this Agreement, nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event) (i) except as set forth in Section 5.13(k)(i) of the Seller Disclosure Schedule, result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer, director or other service provider of Seller or any of its ERISA Affiliates; (ii) limit the right of Seller or any of its ERISA Affiliates to amend, merge, terminate or receive a reversion of assets from any Seller Employee Program or related trust; or (iii) result in a requirement to pay any tax “gross-up” or similar “make-whole” payments to any employee, director or consultant of Seller or an ERISA Affiliate.
(l) Except as set forth in Section 5.13(l) of the Seller Disclosure Schedule, no Seller Employee Program, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code or any other provision of the Code or any similar foreign Law, as a result of the transactions contemplated by this Agreement alone or together with any other event
(m) The GeoCapital Corporation Defined Benefit Pension Plan met parties acknowledge that certain payments have been made or are to be made and certain benefits have been granted or are to be granted according to employment compensation, severance and other employee benefit plans of Seller, including the requirements Seller Employee Programs (collectively, the “Arrangements”), to the Covered Securityholders. Seller hereby represents and warrants that all such amounts payable under the Arrangements (i) are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) are not calculated based on the number of Section 4021(b)(13shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. Seller also hereby represents and warrants that the Compensation Committee of the Seller Board (the “Seller Compensation Committee”) of ERISA (i) at a meeting duly called and held at which all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.members of
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 3.7 of the RMSI Disclosure Letter sets forth a list of every material and significant Employee Program that is currently maintained by RMSI or an Affiliate of RMSI (as defined below"RMSI Affiliate") that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing"RMSI Employee Programs").
(b) Each RMSI Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and except as disclosed in Section 3.7 of the RMSI Disclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such RMSI Employee Program through and including the Closing Date (or, if earlier, the date that such RMSI Employee Program was terminated). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not knowNeither RMSI nor any RMSI Affiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the RMSI Employee Programs that have been maintained by the CompanyPrograms. With respect to any RMSI Employee Program ever maintained by the CompanyProgram, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) material failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject RMSI or any RMSI Affiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of RMSI, threatened with respect to any such RMSI Employee Program.
(d) Neither Except as disclosed in Section 3.7 of the Company RMSI Disclosure Letter, during the last 3 years, neither RMSI nor any ERISA RMSI Affiliate (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there which has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA or Code Section 412 (other than a "RMSI Title IV Plan"), including, but not limited to, any Multiemployer Plan, (ii) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ), or has ever promised to provide such post-termination benefits. Any Employee Program which , for a period of longer than 12 months or (iii) has been subject provided health care or any other non-pension benefits to Title IV any individuals who were previously employed by entities acquired by RMSI prior to the date of ERISA has been terminated in accordance with Section 4041 this Agreement for a period of ERISA and the regulations promulgated thereunderlonger than 12 months.
(e) With respect to each RMSI Employee Program maintained by the Company within the three (3) years preceding the ClosingProgram, complete and correct copies of the following documents (if applicable to such RMSI Employee Program) have previously been delivered or made available to AMGXxxxxxx: (i) all documents embodying or governing such RMSI Employee Program, and any funding medium for the RMSI Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such RMSI Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the three most recent actuarial valuation reports completed with respect to such RMSI Employee Program; (v) the summary plan description for such RMSI Employee Program (or other descriptions of such RMSI Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such RMSI Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities with respect to any Employee Program subsequent to state or federal agency within the Closing (including, without limitation, health care continuation requirements)last three years.
(f) Each RMSI Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by RMSI to the Companygreatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any RMSI Employee Program (except claims incurred but not reported under any welfare plan and no condition exists which would limit the right of RMSI or any benefit described in Section 411(d)(6) of the Code)RMSI Affiliate to so amend, terminate or otherwise modify such RMSI Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements For purposes of this Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.Section 5.7:
Appears in 1 contract
Samples: Merger Agreement (Richmont Marketing Specialists Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.27 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company or an Affiliate (including, without limitation, any entity or business which the Company has acquired by asset purchase, stock purchase, merger, consolidation or other similar transaction) at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Neither the Company does not knownor any Affiliate knows, and has no reason to nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever maintained by the CompanyCompany or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 2.27).
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title Title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA any Affiliate and subject to title Title IV of ERISA, there has been no (nor will there be any as a result of the transaction transactions contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, 4043 or the regulations thereunder (thereunder, for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) by the regulations thereunder, and (ii) no event or condition which presents a material risk of a plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Samples: Stock Purchase Agreement (Marketing Specialists Corp)
Employee Benefit Programs. (a) Section 2.14(a) of the Company Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program maintained by Company or an ERISA Affiliate of Company (as defined below) that has been maintained (as defined below) by the “Company at any time during the three-year period ending on the date of the ClosingEmployee Programs”).
(b) Each Company Employee Program which has ever been maintained by the Company and which has at any time been that is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under with respect to such sectionqualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance, or has time remaining for application to the IRS for a determination of the qualified status of such Company Employee Program for any period for which such Company Employee Program would not otherwise be covered by an IRS determination. The Company does not knowTo the Knowledge of the Company, and has no reason to know, of any event or omission that has occurred which that would reasonably be expected to cause any such Company Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)).
(c) The Neither the Company does not knownor any Subsidiary of the Company knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws Laws applicable with respect to the Employee Programs that have been maintained by the Company or any ERISA Affiliate of the Company. With Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, with respect to any Employee Program ever maintained maintained, or contributed to, by the Company or any ERISA Affiliate of the Company, there has occurred been no "(i) “prohibited transaction," ” as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable Laws, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirementsagreement, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG(iii) non-deductible contribution. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the Knowledge of the Company, threatened with respect to any such Company Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawLaws) with respect to all Employee Programs ever maintained by the Company or any AffiliateERISA Affiliate of the Company, for all periods prior to the ClosingClosing Date, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Pland) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any ERISA Affiliate of the Company has ever maintained an Employee Program subject to Title IV or Section 302 of ERISA, or that is a voluntary employee beneficiary association, or a Multiemployer Plan. None of the Company Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or state continuation Laws) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to Except as set forth on Section 2.14(e) of the Company Disclosure Schedule, each Employee Program maintained by required to be listed on Section 2.14(a) of the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Disclosure Schedule 3.24 may be amended, terminated, modified or otherwise revised discontinued by Talos after the Effective Time in accordance with its terms without material liability to the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan Talos or any benefit described in of their respective Subsidiaries.
(f) Except as set forth on Section 411(d)(62.14(f) of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to any written (i) agreement with any current or former stockholder, director, employee or consultant of the Company or any of its Subsidiaries (A) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company or any of its Subsidiaries of the nature of any of the Contemplated Transactions, (B) providing any guaranteed period of employment or compensation guarantee, or (C) providing severance benefits after the termination of employment or service of such director, employee, or consultant; or (ii) agreement or plan binding the Company or any of its Subsidiaries, including any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, or severance benefit plan, any of the benefits of which shall be increased, or the vesting of the benefits of which shall be accelerated, by the occurrence of any of the Contemplated Transactions or the value of any of the benefits of which shall be calculated on the basis of any of the Contemplated Transactions. There is no contract, agreement, plan or arrangement covering any individual that, by itself or collectively, would give rise to any parachute payment subject to Section 280G of the Code), nor has Company made any such payment, and the consummation of the transactions contemplated herein shall not obligate Company or any other entity to make any parachute payment that would be subject to Section 280G of the Code.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Company Employee Program that is a “nonqualified deferred compensation plan” within the requirements meaning of Section 4021(b)(13409A of the Code has been operated and maintained in compliance with Section 409A of the Code in all material respects. No stock option granted under any Company Stock Option Plan has any exercise price that was less than the fair market value of the underlying stock as of the date the option was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option.
(h) For purposes of this Section 2.14:
(i) An entity “maintains” an Employee Program if such entity sponsors, contributes to, or provides benefits under or through such Employee Program, or has any obligation (by agreement or under applicable Laws) to contribute to or provide benefits under or through such Employee Program, or if such Employee Program provides benefits to or otherwise covers employees of such entity (or their spouses, dependents, or beneficiaries).
(ii) An entity is an “ERISA Affiliate” of Company if it would have ever been considered a single employer with Company under ERISA Section 4001(b) or part of the same “controlled group” as Company for purposes of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such planSection 302(d)(8)(C).
Appears in 1 contract
Samples: Merger Agreement (Targacept Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto Section 3.5.8 of the Disclosure Letter lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company an MSC/SFI Entity at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company an MSC/SFI Entity and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not knowTo the Knowledge of the MSC Parties, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionsection (including, without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred, or will occur as a result of the transaction contemplated herein, with respect to any Employee Program.
(c) The Neither the MSC Parties nor any Company does not knowknows, and has no nor should any of them have reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanyMSC/SFI Entities. With respect to any Employee Program ever maintained by the CompanyMSC/SFI Entities or the Companies, there has occurred no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLCMSC/SFI Entities, Merger Sub (ii) failure to comply with any provision of ERISA, the Code, or AMGany other applicable law, or any agreement, or (iii) non-deductible contribution, which in the case of (i), (ii) or (iii), could subject the MSC/SFI Entities to liability either directly or indirectly (including, without limitation, through any obligation of indemnification or contribution) for any damages, penalties or taxes, or any other loss or expense. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any AffiliateMSC/SFI Entities, for all periods prior to the ClosingClosing Date, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no d) None of the MSC/SFI Entities (i) has ever maintained any Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of or Code Section 412 or ERISA Section 4001(a)(18)302 (including, as of the Closing Date. Neither the Company nor but not limited to, any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company multiemployer plan) or any Affiliate (ii) has ever provided health care or any other non-non- pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Neither MSC/SFI nor any Controlled Group Member has directly or indirectly acted in any manner or incurred any obligation or Liability with respect to any Employee Program which has been subject or could give rise to Title IV any liens against any of the assets of any MSC/SFI Entity or which could result in any Liability to an MSC/SFI Entity or Bekaert. None of the MSC/SFI Entities have any actual or potential liabilities under Section 4201 of ERISA has been terminated for any complete or partial withdrawal from a multiemployer plan (as defined in accordance with ERISA Section 4041 of ERISA and the regulations promulgated thereunder3(37)).
(e) With respect to each Employee Program maintained by the Company MSC/SFI Entities within the three six (36) years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBekaert: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership planfederal or state securities law; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities the six (6) most recent actuarial valuation reports completed with respect to any each such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program required to be listed on Schedule 3.24 in Section 3.5.8 of the Disclosure Letter may be amended, terminated, modified or otherwise revised modified by the CompanyMSC/SFI Entities to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan Employee Program document has failed to effectively reserve the right of an MSC/SFI Entity to so amend, terminate or any benefit described in Section 411(d)(6) of the Code)otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the Each Employee Program ever maintained by an MSC/SFI Entity (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times or federal and as a resultstate securities laws including, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by an MSC/SFI Entity has complied with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, and the Mental Health Parity Xxx 0000.
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 2.24 lists every Employee Program (as defined below) ------------- that has been maintained (as defined below) by the Company Seller at any time during the three-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company Seller and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been continuously qualified under the applicable section of the Code since the effective date of such Employee Program. The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company Seller does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanySeller. With respect to any Employee Program ever maintained by the CompanySeller, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to Buyer. To the LLCknowledge of Seller, Merger Sub or AMG. No no litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company Seller nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs has ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title Title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-post- termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company Seller within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG Buyer to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists every Employee Program Seller's Plan (as defined belowin Section 1.13(e)) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing.
(b) Each Employee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under section 401(a) of the Code and it has, in fact, been continuously qualified under such sectionsection of the Code since the effective date of Seller's Plan. The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program Seller's Plan to lose its qualification under Section 401(a) of the applicable Code sectionCode.
(cb) The Company Seller does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanySeller's Plan. With respect to any Employee Program ever maintained by the CompanySeller, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGBuyer. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(dc) Neither the Company Seller nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs has ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title Title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(ed) With respect to each Employee Program maintained by the Company within the three (3) years preceding the ClosingSeller's Plan, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Programplan, and any funding medium for the Employee Program plan (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program plan under Code Sections 401 or 501(c)(9)Section 401, and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; and (iv) the summary plan description for such Employee Program plan (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).;
(fe) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 4.23 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller or any Subsidiary of Seller at any time during the past three-years (collectively, "Seller Employee Programs"). General Partner and Limited Partner have not maintained any Employee Program during the three-year period ending on the date of the Closing.
(b) Each Except as set forth on Schedule 4.23, each Employee Program which has ever been maintained by the Company Seller or any Subsidiary of Seller and which has at any time been intended to qualify under Section 401(a) or 501(c)(9of the Code, and each associated trust which at any time has been intended to be exempt from taxation pursuant to Section 501(a) of the Code has received is the subject of a favorable determination determination, opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification or exemption from taxation, as applicable, under such sectionsection and has, in fact, been qualified or tax exempt, as applicable, under the applicable section of the Code for all periods for which the applicable statute of limitations has not expired through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company Except as set forth on Schedule 4.23, Seller does not know, know and has no reason to know, of any failure of any party to comply in any material respect with any laws applicable to the Employee Programs that have been maintained by the CompanySeller or any Subsidiary of Seller. With respect to any Employee Program ever maintained by Seller or any Subsidiary of Seller for all periods for which the Companyapplicable statute of limitations has not expired, there has 34 occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or any material violation of, or material breach of any duty under under, ERISA or other applicable law (including, without limitation, any health care continuation requirements (under part 6 of subtitle B of Title I or ERISA, or otherwise) or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLCSeller, Merger Sub or AMGany Subsidiary of Seller, Buyer or Nextera. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Seller, threatened with respect to any such Employee Program.
(d) Neither the Company Except as disclosed on Schedule 4.23, neither Seller nor any ERISA Affiliate (as defined below) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" ever (whether or not waivedi) with respect to maintained any Employee Program ever maintained by the Company or any Affiliate and which has been subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title Title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and ; (ii) no event maintained any Multiemployer Plan (as defined below); or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawiii) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) ERISA or benefits that continue for a brief period of time after termination of employment, for example for the balance of the month in which an employee terminates, or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder).
(e) With Except as set forth on Schedule 4.23, with respect to each Seller Employee Program maintained by the Company Seller or any Subsidiary of Seller within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Seller Employee Program) have previously been made available delivered to AMGNextera: (i) all documents embodying or governing such Seller Employee Program, and any funding medium for the Seller Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination determination, opinion or approval letter with respect to such Seller Employee Program under Code Sections 401 or 501(c)(9and 501(a), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Seller Employee Program (or other descriptions of such Seller Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Seller Employee Program; (vi) any documents evidencing any loan to an a Seller Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG Buyer to perform any of its responsibilities with respect to any Seller Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Neither Seller nor any ERISA Affiliate has any announced plan or legally binding commitment to create any additional Employee Program listed on Schedule 3.24 may be amended, terminated, modified which is intended to cover employees or otherwise revised by the Company, including the elimination former employees of Seller or any and all future benefit accruals under ERISA Affiliate (with respect to their relationship with such entities) or to amend or modify any existing Employee Program (except claims incurred but not reported under any welfare plan which covers or has covered employees or former employees of Seller or any benefit described in Section 411(d)(6) of the CodeERISA Affiliate (with respect to their relationship with such entities).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements Schedule 4.23(g) sets forth (i) all plans, policies, contracts, agreements or similar arrangements that impose any obligation on Seller (including any Liability assumed from a predecessor of Seller) or any ERISA Affiliate to provide any retiree medical benefits or any other "welfare plan" (as defined in Section 4021(b)(133(1) of ERISA) benefits for retirees (collectively, "Retiree Welfare Benefit Plans"). Except as set forth on Schedule 4.23(g) no representative of Seller (or any representative of any predecessor of Seller to the extent enforceable against Seller) or any ERISA at all times Affiliate, or, to the knowledge of Seller, any Retiree Welfare Benefit Plan, has made any commitment (whether written or oral) to any employee or former employee of Seller or any ERISA Affiliate to maintain any such Retiree Welfare Benefit Plan or any benefits thereunder.
(h) No event has occurred in connection with which Seller, any ERISA Affiliate or any Employee Program, directly or indirectly, could be subject to any material liability (A) under any statute, regulation or governmental order relating to any Employee Programs or (B) pursuant to any obligation of Seller or any ERISA Affiliate to indemnify any person against liability incurred under any such statute, regulation or order as they relate to the Employee Programs.
(i) Except as described on Schedule 4.23, neither the execution and as a resultdelivery of this Agreement by Seller or any Subsidiary of Seller nor the consummation of the transactions contemplated hereby will result in the acceleration or creation of any rights of any person to benefits under any Employee Program (including, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings the acceleration of the vesting or exercisability of any stock options, the acceleration of the vesting of any restricted stock, or the acceleration or creation of any rights under any severance, parachute or change in connection control agreement).
(j) There is no contract, agreement, plan or arrangement covering any employee or former employee of Seller or any ERISA Affiliate (with respect to its relationship with such entities) that, individually or collectively, provides for the termination payment by Seller or any ERISA Affiliate of such planany amount (i) that is not deductible under Section 162(a)(1) or 404 of the Code or (ii) that is an "excess parachute payment" pursuant to Section 280G of the Code.
(k) All contributions required to be made by Seller or any ERISA Affiliate with respect to any Employee Program due as of any date through and including the Closing Date have been made when due.
Appears in 1 contract
Employee Benefit Programs. (a) Section 5.18 of the Company Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company or an Affiliate at any time during the threefive-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Neither the Company does not knownor any Affiliate knows, and has no reason to nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever maintained by the CompanyCompany or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the ClosingClosing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Section 5.18 of the Company Disclosure Schedule.
(d) Neither the Company nor any Affiliate has ever maintained an Employee Program maintained by the Company or an Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing DateERISA. Neither the Company nor any Affiliate has ever maintained contributed to or been obligated to contribute to a Multiemployer PlanPlan and neither the Company nor any Affiliate has ever had any collectively bargained employees. None Except as set forth in Section 5.18 of the Company Disclosure Schedule, none of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part Part 6 of subtitle Subtitle B of title Title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three five (35) years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGParent or its representatives: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three five (35) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vi) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (vii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities state or federal agency within the last five (5) years with respect to any such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program required to be listed on in Section 5.18 of the Company Disclosure Schedule 3.24 may be amended, terminated, modified or otherwise revised modified by the CompanyCompany to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan or any benefit described in Section 411(d)(6) Employee Program document has failed to effectively reserve the right of the Code)Company or the Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in material compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation state securities laws including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by the Company or an Affiliate has complied with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this section:
Appears in 1 contract
Samples: Merger Agreement (Inverness Medical Technology Inc/De)
Employee Benefit Programs. (a) Schedule 3.24 hereto 2.22 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller at any time during the three-year period ending on the date of the Closingprior three (3) years.
(b) Each Employee Program which Seller has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section. The Company does not know, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, and has no reason to know, of any failure of any party to comply complied in all material respects with any laws all Laws applicable to the Employee Programs that have been maintained by the CompanySeller. With respect to any Employee Program ever maintained by the CompanySeller, there has occurred no "“prohibited transaction," ” as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law Law (including, without limitation, any health care continuation requirements or any other tax law Tax Law requirements, or conditions to favorable tax Tax treatment, applicable to such plan), which could would result, directly or indirectly, in any taxesTaxes, penalties penalties, or other liability to the LLC, Merger Sub or AMGPurchaser. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding Proceeding (other than those relating to routine claims for benefits) is pending or or, to Seller’s Knowledge, threatened with respect to any such Employee Program.
(dc) Neither the Company nor Seller (i) has not maintained any ERISA Affiliate Employee Program which has incurred any liability under title been subject to Title IV of ERISA which has (including, but not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" limited to, any Multiemployer Plan (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615defined below)) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever not provided health care or any other non-pension benefits to any employees after their employment is was terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder, except as set forth on Schedule 2.22.
(ed) With respect to each Employee Program maintained by the Company Seller within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered or made available to AMGPurchaser or its counsel to the extent applicable or available: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' ’ opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; and (v) any insurance policy (including without limitation any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(fe) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this Section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 2.23 hereto lists sets forth a list of every Employee ------------- Program (as defined below) that has been maintained (as such term is further defined below) by the Company EnzyMed at any time during the three-year period ending on the date of the Closinghereof.
(b) Each Employee Program which has ever been maintained by the Company EnzyMed and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code Code, has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does Except for amendments made to the Code for which the remedial amendment period has not knowexpired, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does Except as set forth on Schedule 2.23 hereto, there has not know, and has no reason to know, of ------------- been any failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by the CompanyEnzyMed which is reasonably likely to have a material adverse effect on EnzyMed. With respect to any Employee Program ever now or heretofore maintained by the CompanyEnzyMed, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectlyindirectly (including without limitation through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the LLC, Merger Sub EnzyMed or AMGany Affiliate (as defined below) which is reasonably likely to have a material adverse effect on EnzyMed. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of EnzyMed, threatened with respect to any such Employee ProgramProgram which is reasonably likely to have a material adverse effect on EnzyMed.
(d) Neither the Company nor any ERISA Affiliate EnzyMed has not incurred any liability under title Title IV of ERISA which has will not been be paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate EnzyMed and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate EnzyMed and subject to title Title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate EnzyMed to incur 18 26 liability or have a lien imposed on its assets under title Title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever heretofore maintained by the Company or any AffiliateEnzyMed, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.242.23 hereto). Except as described in on Schedule 3.242.23 ------------- ------------- hereto, no Employee Program maintained by the Company or an Affiliate EnzyMed and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate EnzyMed has ever never maintained a Multiemployer Plan. None Except as described on Schedule 2.23 hereto, none of the Employee Programs ever maintained by the Company or any Affiliate EnzyMed ------------- has ever provided health care or any other non-pension benefits to any employees after their employment is was terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or the Iowa Extension of Coverage law, as applicable) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company EnzyMed within the three (3) years preceding the Closingdate hereof, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent Multiemployer Plan, any participation or adoption agreement relating to the Closing (including, without limitation, health care continuation requirements).EnzyMed's participation in or contributions under such plan;
(f) Each Except as set forth on Schedule 2.23 hereto, each Employee ------------- Program maintained by EnzyMed as of the date hereof is subject to termination by the Board of Directors of EnzyMed without any further liability or obligation on the part of EnzyMed to make further contributions to any trust maintained under any such Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code)following such termination.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements For purposes of this Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.2.23:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.19 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company or an ERISA Affiliate at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each No Employee Program which has ever been maintained by the Company and or an ERISA Affiliate, which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code and which has received requested a determination or approval letter from the Internal Revenue Service ("IRS") regarding its qualification under such section has been denied a favorable determination or approval letter and each such Employee Program has, in fact, qualified under the applicable section of the Code from the IRS regarding its qualification under effective date of such sectionEmployee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Neither the Company does not know, and nor any ERISA Affiliate has no reason to know, any Knowledge of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any ERISA Affiliate. With respect to any Employee Program ever maintained by the CompanyCompany or any ERISA Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under of (i), (ii), or (iii), could subject the Company or any ERISA Affiliate to liability either directly or other applicable law indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any ERISA Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 2.19).
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any ERISA Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an any ERISA Affiliate and subject to title Title IV of ERISA, there has been no (nor will there be any as a result of the transaction transactions contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, 4043 or the regulations thereunder (thereunder, for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) by the regulations thereunder, and (ii) no event or condition which presents a material risk of a plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title Title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.242.19, no Employee Program maintained by the Company or an any ERISA Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither With respect to each Multiemployer Plan maintained by the Company nor or any ERISA Affiliate, Schedule 2.19 states the amount of withdrawal liability or other termination liability that would be incurred by the Company or ERISA Affiliate has ever maintained if there were a Multiemployer Plancessation of operations or of the obligation to contribute to such plan as of the Closing Date. None of the Employee Programs ever maintained by the Company or any ERISA Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) six years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG to perform material correspondence between the Company and any of its responsibilities state or federal agency within the last six years with respect to any such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program required to be listed on Schedule 3.24 2.19 may be amended, terminated, modified or otherwise revised modified by the CompanyCompany to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no provision of any welfare plan or any benefit described in Section 411(d)(6) Employee Program document has failed to effectively reserve the right of the Code)Company or the ERISA Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation state securities laws including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933 and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by the Company or an ERISA Affiliate has complied with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996, and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto Part 3.12 of the Disclosure Letter lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company or any of the companies merged with and into the Company or acquired by the Company prior to the date hereof (collectively, the "Predecessors") (i) at any time during the three-year period ending on since July 1, 1991 and (ii) any other Employee Program so maintained at any time prior to the date of hereof to the Closingextent that the Company has any liability (contingent or otherwise) with respect thereto.
(b) Each Employee Program which has ever been maintained by the Company or any of its Predecessors and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code IRC has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and, to the Constructive Knowledge of the Stockholders, has, in fact, been qualified under the applicable section of the IRC from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or COURIER/BOOK-MART PRESS, INC. STOCK PURCHASE AGREEMENT omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code IRC section.
(c) The Company does not knowTo the Constructive Knowledge of Stockholders, and has no reason to know, of any material failure of any party to comply with any laws Legal Requirement applicable to the Employee Programs that have been maintained by the CompanyCompany or any of its Predecessors has occurred or exists. With respect to any Employee Program ever maintained by the CompanyCompany or any of its Predecessors and which is listed or required to be listed in Part 3.12 of the Disclosure Letter pursuant to Section 3.12(a) hereof, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 of the CodeIRC, or breach of any duty under ERISA or other applicable law Legal Requirement (including, without limitation, any health care continuation requirements or any other tax Tax law requirements, or conditions to favorable tax Tax treatment, applicable to such plan), which could will result, directly or indirectly, in any taxesmaterial Taxes, penalties or other liability to the LLC, Merger Sub Company or AMGBuyer. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened or, to the Actual Knowledge of Stockholders, Threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate (as defined below) nor any of the Company's Predecessors (i) has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to ever maintained any Employee Program ever maintained by the Company or any Affiliate and which has been subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title Title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part Part 6 of subtitle Subtitle B of title Title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within or any of its Predecessors at any time prior to the three (3Closing and which is listed or required to be listed in Part 3.12 of the Disclosure Letter pursuant to Section 3.12(a) years preceding the Closinghereof, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, any trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code IRC Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG Buyer to perform any of its responsibilities with respect to COURIER/BOOK-MART PRESS, INC. STOCK PURCHASE AGREEMENT any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 2.24 attached hereto lists sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller or an Affiliate at any time during the threesix-year period ending on the date of the Closing.
(b) Closing Date. Each Employee Program which has ever been maintained by the Company Seller or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section.
Section (cincluding without limitation Code Sections 105, 125, 401(a) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company501(c)(9)). With respect to any Employee Program ever maintained by the CompanySeller or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 of the Code4975, (ii) non-deductible contribution, or breach (iii) failure to comply with any provision of ERISA, other applicable law, or any agreement which, in the case of any duty under ERISA of (i), (ii) or other applicable law (iii), could subject the Seller or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company Seller or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Employee Benefit Programs. (a) Section 3.13(a) of the Neuromed Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program maintained by Neuromed or an ERISA Affiliate of Neuromed (as defined below) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing“Neuromed Employee Programs”).
(b) Each Neuromed Employee Program which has ever been maintained by the Company and which has at any time been that is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsuch. The Company does not know, and has no reason to know, of any No event or omission that has occurred which that would reasonably be expected to cause any such Neuromed Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)).
(c) The Company does not knowNeither Neuromed nor any ERISA Affiliate of Neuromed knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by Neuromed or any ERISA Affiliate of Neuromed. Except as would not, individually or in the Company. With aggregate, have a Neuromed Material Adverse Effect, with respect to any Employee Program ever maintained by the CompanyNeuromed or any ERISA Affiliate of Neuromed, there has occurred been no "(i) “prohibited transaction," ”, as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable Laws, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirementsagreement, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG(iii) non-deductible contribution. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the knowledge of Neuromed, threatened with respect to any such Neuromed Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawLaws) with respect to all Employee Programs ever maintained by the Company Neuromed or any AffiliateERISA Affiliate of Neuromed, for all periods prior to the ClosingClosing Date, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no d) Neither Neuromed nor any ERISA Affiliate of Neuromed has maintained an Employee Program maintained by the Company or an Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18)ERISA, as of the Closing Date. Neither the Company nor any Affiliate has ever maintained including a Multiemployer Plan. None of the Neuromed Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or state continuation laws) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program required to be listed on Section 3.13(a) or Section 3.13(h) of the Neuromed Disclosure Schedule 3.24 may be amended, terminated, modified or otherwise revised discontinued by CombinatoRx after the Effective Time in accordance with its terms without material liability to Neuromed, Neuromed Canada, CombinatoRx or any of their respective Subsidiaries.
(f) None of the Neuromed Entities is a party to any written (i) agreement with any stockholders, director, or employee of any of the Neuromed Entities (A) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving any of the Neuromed Entities of the nature of any of the transactions contemplated by this Agreement, (B) providing any guaranteed period of employment or compensation guarantee, or (C) providing severance benefits after the termination of employment of such director or employee; or (ii) agreement or plan binding any of the Neuromed Entities, including any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, or severance benefit plan, any of the benefits of which shall be increased, or the vesting of the benefits of which shall be accelerated, by the Company, including the elimination occurrence of any and all future benefit accruals under of the transactions contemplated by this Agreement or the value of any Employee Program (except claims incurred but not reported under of the benefits of which shall be calculated on the basis of any welfare of the transactions contemplated by this Agreement. There is no contract, agreement, plan or arrangement covering any benefit described in individual that, by itself or collectively, would give rise to any parachute payment subject to Section 411(d)(6) 280G of the Code), nor has Neuromed made any such payment, and the consummation of the transactions contemplated herein shall not obligate Neuromed or any other entity to make any parachute payment that would be subject to Section 280G of the Code.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Neuromed Employee Program that is a “nonqualified deferred compensation plan” within the requirements meaning of Section 4021(b)(13409A of the Code has been operated in material compliance with Section 409A of the Code, based upon a good faith, reasonable interpretation of Section 409A of the Code, the regulations and other guidance issued thereunder. No stock option granted under any Neuromed Stock Option Plan has any exercise price that was less than the fair market value of the underlying stock as of the date the option was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option.
(h) Section 3.13(h) of ERISA at the Neuromed Disclosure Schedule contains a complete and accurate list of all times Neuromed Canada Employee Programs. No Neuromed Canada Employee Program has been terminated or partially terminated and as all Neuromed Canada Employee Programs are still in full force and effect.
(i) All Neuromed Canada Employee Programs are registered where required by the applicable Laws and no events have occurred which would affect the registered status of such Neuromed Canada Employee Programs.
(j) All Neuromed Canada Employee Programs are in good standing under applicable Laws and Neuromed Canada has made all filings required by the Governmental Authorities and applicable Laws. The Neuromed Canada Employee Programs and all investments held by such Plans comply in all respects with all applicable Laws and the Neuromed Canada Employee Programs have been established, funded, invested, amended, maintained and administered in compliance with all of the terms and conditions of the Neuromed Canada Employee Programs and all applicable Laws.
(k) All employee data necessary to administer the Neuromed Canada Employee Programs is in the possession of Neuromed Canada.
(l) All required contributions or premiums to be paid under the Neuromed Canada Employee Programs have been fully paid to the date hereof in a resulttimely fashion in accordance with applicable Laws and there are no liabilities, was not required make contingent or otherwise, in respect of any filings pension, benefit or compensation plan that has been discontinued.
(m) There have been no withdrawals or transfers of assets from the Neuromed Canada Employee Programs except to a member or a beneficiary except in accordance with the Pension Benefit Guaranty Corporation including without limitationterms of such Neuromed Canada Employee Programs or in accordance with approval granted by a Governmental Authority. No actuarial surplus has ever been removed from any of the Neuromed Canada Employee Programs. In respect of each Neuromed Canada Employee Program that is funded, filings in connection whole or in part, no Person has taken any contribution holidays in respect of such Neuromed Canada Employee Program, paid any administration expenses from the fund of such Neuromed Canada Employee Program or received a transfer from or been merged with another plan, in each case except in accordance with the terms of such Neuromed Canada Employee Program, the trusts and other funding criteria which govern such Neuromed Canada Employee Program and applicable Laws.
(n) There are no outstanding liabilities under the Income Tax Act (Canada) or other Tax liabilities with respect to the Neuromed Canada Employee Programs.
(o) No unfunded liability, solvency deficiency, unpaid special payment or experience deficiency, whether due or not, exists with respect to the Neuromed Canada Employee Programs. There has been no material change in the value of any Neuromed Canada Employee Program since the last valuation which would affect the actuarial report or financial statements and the actuarial methods and assumptions used have not changed since the last valuation.
(p) No improvements to the Neuromed Canada Employee Programs have been promised and no improvements will be made or promised prior to the Effective Time except as may be required by applicable Laws.
(q) None of the Neuromed Canada Employee Programs requires or permits a retroactive increase in premiums or payments, or require additional payments or premiums on the termination of any Neuromed Canada Employee Programs or insurance contract in respect thereof, and the level of insurance reserves, if any, under any insured Neuromed Canada Employee Program is reasonable and sufficient to provide for all incurred but unreported claims.
(r) None of the execution and delivery of this Agreement, the performance of the obligations of the Neuromed Entities under this Agreement or the consummation of any of the transactions contemplated in this Agreement will:
(i) result in any payment (including bonus, golden parachute, retirement, severance, unemployment compensation, or other benefit or enhanced benefit) becoming payable under any Neuromed Canada Employee Program;
(ii) increase any benefits otherwise payable under any Neuromed Canada Employee Programs;
(iii) entitle any employee of Neuromed Canada to any job security or similar benefit or any enhanced benefits; or
(iv) result in the acceleration of the time of payment or vesting of any benefits otherwise payable under any Neuromed Canada Employee Programs, or result in any such planplan becoming terminable other than at the sole and unfettered discretion of Neuromed Canada.
(s) None of the Neuromed Canada Employee Programs provides benefits beyond retirement or other termination of service to employees or former employees or to the beneficiaries or dependants of such employees.
(t) There are no outstanding actions or claims with respect to the Neuromed Canada Employee Programs, other than claims for benefits submitted by members or beneficiaries in the ordinary course; there are no requests for documents and there is no litigation, legal action, suit, investigation, claim, counterclaim or proceeding pending or threatened against or affecting any Neuromed Canada Employee Programs which could have a material adverse effect on Neuromed Canada or on any Neuromed Canada Employee Program as of the Effective Time.
(u) Neither Neuromed Canada nor any administrator or fiduciary of the Neuromed Canada Employee Programs (or agent of any of the foregoing) has been in breach of any fiduciary obligation with respect to the administration of the Neuromed Canada Employee Programs. Neither Neuromed Canada, nor any administrator of any fiduciary of the Neuromed Canada Employee Programs (or agent of any of the foregoing) has engaged in any transaction or acted or failed to act in a manner which could subject Neuromed Canada to any liability for a breach of fiduciary duty.
(v) No Neuromed Canada Employee Program is a multi-employer pension plan as defined under the provisions of applicable federal or provincial pension standards legislation in Canada.
(w) No condition exists that would prevent Neuromed Canada from amending or terminating any Neuromed Canada Employee Program other than any limitations imposed by applicable Laws.
(x) For purposes of this Section 3.13:
(i) An entity “maintains” an Employee Program if such entity sponsors, contributes to, or provides benefits under or through such Employee Program, or has any obligation (by agreement or under applicable Laws) to contribute to or provide benefits under or through such Employee Program, or if such Employee Program provides benefits to or otherwise covers employees of such entity (or their spouses, dependents, or beneficiaries).
(ii) An entity is an “ERISA Affiliate” of Neuromed if it would have ever been considered a single employer with Neuromed under ERISA Section 4001(b) or part of the same “controlled group” as Neuromed for purposes of ERISA Section 302(d)(8)(C).
Appears in 1 contract
Samples: Merger Agreement (Combinatorx, Inc)
Employee Benefit Programs. Except as otherwise provided in SCHEDULE 4.2(l):
(i) SCHEDULE 4.2(l) sets forth all of the "employee benefit plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), employment, change-in-control, incentive, deferred compensation and severance policies, plans and arrangements, and all other employee benefit, fringe benefit plans and programs maintained or contributed to by CNET and its Affiliates with respect to current or former employees of the Snap! Business (the "PLANS"). CNET and its Affiliates have provided or made available to NBC (a) Schedule 3.24 hereto lists every Employee Program a copy of each of the Plans, including all amendments thereto, (as defined belowb) that has been maintained any trust agreements thereunder, (as defined belowc) each summary plan description, (d) the most recent favorable determination letter issued by the Company at any time during Internal Revenue Service, if applicable, and (e) for each applicable year, the three-year period ending on the date of the ClosingForm 5500 and attached schedules, audited financial statements, and actuarial valuation reports.
(bii) To the knowledge of CNET and its Affiliates, each Plan is in all material respects, in compliance with the applicable requirements of law, including, if applicable,
(iii) Each Employee Program Pension Benefit Plan which has ever been maintained by the Company and which has at any time been is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination letter that it is so qualified, and, to the knowledge of CNET and its Affiliates, no facts or approval letter from the IRS regarding its qualification under such section. The Company does not know, and has no reason to know, of any event or omission that has occurred circumstances exist which would cause any of such Employee Program favorable determination letters to lose its qualification under the applicable Code section.
(c) The Company does not knowbe revoked. In addition, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program ever maintained by the Companyknowledge of CNET and its Affiliates, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate Plan has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), and to the knowledge of CNET and its Affiliates, no "reportable event" (as defined in Section 4043(c) of ERISA) has occurred with respect to any such Plan.
(iv) Except as set forth in SCHEDULE 4.2(l), and to the knowledge of CNET and its Affiliates, no plan or arrangement exists which would be reasonably likely to result in the payment to any employee or former employee of the Snap! Business of any money or other property or rights or accelerate or provide any other rights or benefits to any employee or former employee of the Snap! Business as a result of the transactions contemplated by this Agreement, whether or not waivedsuch payment would constitute a parachute payment within the meaning of Section 280G of the Code, and there are no contracts, agreements or other arrangements which would be reasonably likely to result in the payment to any such employee of an "excess parachute payment" as that term is used in Section 280G of the Code.
(v) Except as set forth in SCHEDULE 4.2(l), neither CNET nor any of its Affiliates has contributed to or participated in any pension plan which is a "multiemployer plan", as defined in Section 3(37) of ERISA, or in any "multiple employer" plan within the meaning of Section 4063 or 4064 of ERISA, in respect of Snap! Business employees.
(vi) To the knowledge of CNET and its Affiliates all contributions with respect to employees of the Snap! Business required to be made on or prior to Closing under the terms of any Plan have been (or will by Closing be) timely made by CNET and its Affiliates.
(vii) There are no pending or, to the knowledge of CNET and its Affiliates, threatened claims (other than with respect to benefits in the normal course), lawsuits, investigations, administrative proceedings or other actions arising out of, or in connection with the operation or administration of any Plan with respect to the Snap! Business covered in (g). (m) ABSENCE OF CERTAIN CHANGES OR EVENTS. Since March 31, 1998 and except as otherwise disclosed herein or set forth in SCHEDULE 4.2(m) or the other Schedules hereto, there has not been (i) any Material Adverse Effect with respect to the Snap! Business, the Snap! Assets, the Assumed Liabilities or in the condition (financial or other) or results of operations of the Snap! Business, provided that operating losses in all material respects in accordance with the Snap! Business business plan previously provided to NBC experienced by the Snap! Business will not, in and of themselves, be deemed to constitute such a Material Adverse Effect, (ii) any material damage, destruction or loss relating to the Snap! Business or the Snap! Assets, whether or not insured, (iii) any Liability created or incurred which the LLC will assume under Section 2.3 hereof except for Liabilities accruing after March 31, 1998 in the ordinary course of business in a manner consistent with past practice and, to the extent applicable, the requirements of Section 5.7, (iv) any Lien created on any Snap! Asset except Permitted Liens, (v) any increase in, or commitment or plan adopted to increase, the wages, salaries, compensation, pension or other benefits or payments to any of the Snap! Business's employees, except for normal compensation adjustments in the ordinary course of business and consistent with past practice, (vi) any capital expenditures or commitment to make any such expenditures with respect to the Snap! Assets or as to which the will become obligated after the Closing pursuant to Section 2.3 hereof except (A) with respect to any Employee Program ever maintained by such expenditures or commitments incurred prior to the Company or any Affiliate date hereof, to the extent such expenditures and subject to Code Section 412 or ERISA Section 302. With commitments do not exceed $25,000 in the aggregate and (B) with respect to any Employee Program maintained by such expenditures or commitments incurred on or after the Company date hereof as permitted under Section 5.7, (vii) any rights of substantial value knowingly waived with respect to the Snap! Assets or an ERISA Affiliate the Snap! Business or (viii) any sale or transfer of any Snap! Assets other than dispositions of inventory and subject obsolete or worn out equipment in the ordinary course of business. Since March 31, 1998, other than acts relating to title IV of ERISA, there has been no (nor will be any as a result of the transaction transactions contemplated by this Agreement) (i) "reportable event," within , the meaning of ERISA Section 4043Snap! Business has been conducted in all significant respects only in the ordinary course, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) consistent with respect to all Employee Programs ever maintained by the Company or any Affiliatepast practice and, for all periods prior to the Closingextent applicable, either have been made or have been Section 5.7. Since March 31, 1998 the Snap! Business has paid all trade payables, accrued (expenses and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated payroll taxes in accordance with Section 4041 of ERISA past practice and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules terms thereof and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation legal requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 5.12(a) attached hereto lists every Employee Program (as ---------------- defined below) that has been maintained (as defined below) by the Company Mac-Gray at any time during the three-year period ending on the date of the ClosingClosing Date.
(b) Each Except as set forth on Schedule 5.12(b) attached hereto, each ---------------- Employee Program which has ever been maintained by the Company Mac-Gray and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company Mac-Gray does not know, know and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the CompanyMac-Gray. With respect to any Employee Program ever maintained by the CompanyMac-Gray, there has occurred no "prohibited transaction," as defined in Section 406 of the ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGMac-Gray. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company Mac-Gray nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreementdefined below) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs has ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and which has been subject to title IV of ERISA (other than a including, but not limited to, any Multiemployer PlanPlan (as defined below)) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate (ii) has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-post- termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies For purposes of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this section:
Appears in 1 contract
Samples: Merger Agreement (Mac-Gray Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists Section 5.7 of the Merkxxx Xxxclosure Letter sets forth a list of every material and significant Employee Program that is currently maintained by Merkxxx xx an Affiliate of Merkxxx (as defined belowx "Merkxxx Xxxiliate") that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing"Merkxxx Xxxloyee Programs").
(b) Each Employee Merkxxx Xxxloyee Program which has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and except as disclosed in Section 5.7 of the Merkxxx Xxxclosure Letter has, in fact, been qualified under the applicable section of the Code from the effective date of such Merkxxx Xxxloyee Program through and including the Closing Date (or, if earlier, the date that such Merkxxx Xxxloyee Program). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Merkxxx Xxxloyee Program to lose its qualification under the applicable Code section.
(c) The Company does not knowNeither Merkxxx xxx any Merkxxx Xxxiliate knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws applicable with respect to the Employee Programs that have been maintained by the CompanyMerkxxx Xxxloyee Programs. With respect to any Employee Program ever maintained by the CompanyMerkxxx Xxxloyee Program, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) material failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject Merkxxx xx any Merkxxx Xxxiliate to material liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMGexpense. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.those
Appears in 1 contract
Employee Benefit Programs. (a) Schedule 3.24 hereto 2.22 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller at any time during the three-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which Seller has ever been maintained by the Company and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such section. The Company does not know, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification under the applicable Code section.
(c) The Company does not know, and has no reason to know, of any failure of any party to comply complied with any laws all Laws applicable to the Employee Programs that have been maintained by the CompanySeller. With respect to any Employee Program ever maintained by the CompanySeller, there has occurred no "“prohibited transaction," ” as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law Law (including, without limitation, any health care continuation requirements or any other tax law requirementsrequirements under Tax Laws, or conditions to favorable tax Tax treatment, applicable to such plan), which could would result, directly or indirectly, in any taxesTaxes, penalties penalties, or other liability to the LLC, Merger Sub or AMGPurchaser. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding Proceeding (other than those relating to routine claims for benefits) is pending or or, to Seller’s Knowledge, threatened with respect to any such Employee Program.
(dc) Neither the Company nor Seller (i) has not maintained any ERISA Affiliate Employee Program which has incurred any liability under title been subject to Title IV of ERISA which has (including, but not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" limited to, any Multiemployer Plan (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615defined below)) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever not provided health care or any other non-pension benefits to any employees after their employment is was terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(ed) With respect to each Employee Program maintained by the Company Seller within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered or made available to AMGPurchaser or its counsel to the extent applicable or available: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' ’ opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; and (v) any insurance policy (including without limitation any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(fe) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination For purposes of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.this Section:
Appears in 1 contract
Samples: Asset Purchase Agreement (Blonder Tongue Laboratories Inc)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists SCHEDULE 2.27 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company or an Affiliate (including, without limitation, any entity or business which the Company or any Subsidiary has acquired by asset purchase, stock purchase, merger, consolidation or other similar transaction) at any time during the threesix-year period ending on the date of the ClosingClosing Date.
(b) Each Employee Program which has ever been maintained by the Company or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not knowExcept as set forth on SCHEDULE 2.27, and has no reason to know, of any event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)). Except as set forth on SCHEDULE 2.27, each asset held under any such Employee Program may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. No partial termination (within the meaning of Section 411(d)(3) of the Code) has occurred with respect to any Employee Program.
(c) The Except as set forth on SCHEDULE 2.27, neither the Company does not knownor any Affiliate knows, and has no reason to nor should any of them reasonably know, of any failure of any party to comply with any laws applicable with respect to the Employee Programs that have ever been maintained by the CompanyCompany or any Affiliate. With respect to any Employee Program ever maintained by the CompanyCompany or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable law, or breach any agreement, or (iii) non-deductible contribution, which, in the case of any duty under ERISA of (i), (ii), or other applicable law (iii), could subject the Company or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirementsloss or expense. Except as disclosed on SCHEDULE 2.27, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, no litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on SCHEDULE 2.27).
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title Title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA any Affiliate and subject to title Title IV of ERISA, there has been no (nor will there be any as a result of the transaction transactions contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, 4043 or the regulations thereunder (thereunder, for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) by the regulations thereunder, and (ii) no event or condition which presents a material risk of a plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title Title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24SCHEDULE 2.27, no Employee Program maintained by the Company or an any Affiliate and subject to title Title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None Except as described on SCHEDULE 2.27, none of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title Title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by the Company within the three (3) six years preceding the ClosingClosing Date, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available delivered to AMGBuyer: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedamended to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 Section 401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) six most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the six most recent actuarial valuation reports completed with respect to such Employee Program; (v) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (vvi) any insurance policy (including any fiduciary liability insurance policypolicy or fidelity bond) related to such Employee Program; (vivii) any documents evidencing registration statement or other filing made pursuant to any loan to an Employee Program that is a leveraged employee stock ownership plan; federal or state securities law and (viiviii) all other materials reasonably necessary for AMG correspondence to perform and from any of its responsibilities state or federal agency within the last six years with respect to any such Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Program.
(f) Each Employee Program required to be listed on Schedule 3.24 SCHEDULE 2.27 may be amended, terminated, modified or otherwise revised modified by the CompanyCompany to the greatest extent permitted by applicable law, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under and no employee communications or provision of any welfare plan or any benefit described in Section 411(d)(6) Employee Program document has failed to effectively reserve the right of the Code)Company or the Affiliate to so amend, terminate or otherwise modify such Employee Program.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met Each Employee Program ever maintained by the Company (including each non-qualified deferred compensation arrangement) has been maintained in compliance with all applicable requirements of Section 4021(b)(13) of ERISA at all times federal and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation state securities laws including (without limitation, filings if applicable) the requirements that the offering of interests in connection such Employee Program be registered under the Securities Act of 1933, as amended, and/or state "Blue Sky" laws.
(h) Each Employee Program ever maintained by the Company or an Affiliate has complied with the termination applicable notification and other applicable requirements of such planthe Consolidated Omnibus Budget Reconciliation Act of 1985, Health Insurance Portability and Accountability Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 1996 and the Women's Health and Cancer Rights Act of 1998.
(i) For purposes of this section:
Appears in 1 contract
Samples: Stock Purchase Agreement (Marketing Specialists Corp)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists 2.23 sets forth a list of every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller, Subsidiary or an Affiliate at any time during the threesix-year period ending on the date of the Closing.
(b) First Closing Date. Each Employee Program which has ever been maintained by the Company Seller, the Subsidiary or an Affiliate and which has at any time been intended to qualify under Section 401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code") has received a favorable determination or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such sectionsection and has, in fact, been qualified under the applicable section of the Code from the effective date of such Employee Program through and including the First Closing Date (or, if earlier, the date that all of such Employee Program's assets were distributed). The Company does not know, and has no reason to know, of any No event or omission that has occurred which would cause any such Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code section.
Section (cincluding without limitation Code Sections 105, 125, 401(a) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Company501(c)(9)). With respect to any Employee Program ever maintained by the CompanySeller, the Subsidiary or any Affiliate, there has occurred been no (i) "prohibited transaction," as defined in Section 406 of the ERISA Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975 of the Code4975, or breach (ii) failure to comply with any provision of any duty under ERISA or ERISA, other applicable law law, or any agreement which, in the case of either of (i) or (ii), could subject the Seller, Subsidiary or any Affiliate to liability either directly or indirectly (including, without limitation, through any health care continuation requirements obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other tax law requirements, loss or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISAexpense. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company Seller, Subsidiary or any Affiliate, for all periods prior to the ClosingFirst Closing Date, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder2.
(e) With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been made available to AMG: (i) all documents embodying or governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements).
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Duro Communications Corp)
Employee Benefit Programs. (a) Section 2.14(a) of the Company Disclosure Schedule 3.24 hereto lists sets forth a list of every Employee Program maintained by Company or an ERISA Affiliate of Company (as defined below) that has been maintained (as defined below) by the “Company at any time during the three-year period ending on the date of the ClosingEmployee Programs”).
(b) Each Company Employee Program which has ever been maintained by the Company and which has at any time been that is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from the IRS regarding its qualification under with respect to such sectionqualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance, or has time remaining for application to the IRS for a determination of the qualified status of such Company Employee Program for any period for which such Company Employee Program would not otherwise be covered by an IRS determination. The Company does not knowTo the Knowledge of the Company, and has no reason to know, of any event or omission that has occurred which that would reasonably be expected to cause any such Company Employee Program to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits under the applicable Code sectionSection (including without limitation Code Sections 105, 125, 401(a) and 501(c)(9)).
(c) The Neither the Company does not knownor any Subsidiary of the Company knows, and has no reason to nor should any of them reasonably know, of any material failure of any party to comply with any laws Laws applicable with respect to the Employee Programs that have been maintained by the Company or any ERISA Affiliate of the Company. With Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, with respect to any Employee Program ever maintained by the Company or any ERISA Affiliate of the Company, there has occurred been no "(i) “prohibited transaction," ” as defined in Section 406 of the ERISA or Code Section 4975 4975, (ii) failure to comply with any provision of the CodeERISA, other applicable Laws, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirementsagreement, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG(iii) non-deductible contribution. No litigation, arbitration, litigation or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or or, to the Knowledge of the Company, threatened with respect to any such Company Employee Program.
(d) Neither the Company nor any ERISA Affiliate has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable lawLaws) with respect to all Employee Programs ever maintained by the Company or any AffiliateERISA Affiliate of the Company, for all periods prior to the ClosingClosing Date, either have been made or have been accrued accrued.
(and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Pland) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any ERISA Affiliate of the Company has ever maintained an Employee Program subject to Title IV of ERISA, including a Multiemployer Plan. None of the Company Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISAERISA or state continuation Laws) or has ever promised to provide such post-termination benefits. Any Employee Program which has been subject to Title IV of ERISA has been terminated in accordance with Section 4041 of ERISA and the regulations promulgated thereunder.
(e) With respect to each Employee Program maintained by None of the Company within the three (3) years preceding the Closing, complete and correct copies or any of the following documents (if applicable its Subsidiaries is a party to such Employee Program) have previously been made available to AMG: any written (i) all documents embodying agreement with any director, or governing employee of the Company or any of its Subsidiaries (A) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company or any of its Subsidiaries of the nature of any of the Contemplated Transactions, (B) providing any guaranteed period of employment or compensation guarantee, or (C) providing severance benefits after the termination of employment of such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendeddirector or employee; or (ii) agreement or plan binding the most recent IRS determination Company or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the summary plan description for such Employee Program (or other descriptions of such Employee Program provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect Subsidiaries, including any stock option plan, stock appreciation right plan, restricted stock plan, stock purchase plan, or severance benefit plan, any of the benefits of which shall be increased, or the vesting of the benefits of which shall be accelerated, by the occurrence of any of the Contemplated Transactions or the value of any of the benefits of which shall be calculated on the basis of any of the Contemplated Transactions. There is no contract, agreement, plan or arrangement covering any individual that, by itself or collectively, would give rise to any Employee Program subsequent parachute payment subject to Section 280G of the Closing (includingCode, without limitationnor has Company made any such payment, health care continuation requirements)and the consummation of the transactions contemplated herein shall not obligate Company or any other entity to make any parachute payment that would be subject to Section 280G of the Code.
(f) Each Company Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by that is a “nonqualified deferred compensation plan” within the Company, including meaning of Section 409A of the elimination Code has been operated and maintained in compliance with Section 409A of any and the Code in all future benefit accruals material respects. No stock option granted under any Employee Program (except claims incurred but not reported under Company Stock Option Plan has any welfare plan or any benefit described in Section 411(d)(6) exercise price that was less than the fair market value of the Code)underlying stock as of the date the option was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option.
(g) The GeoCapital Corporation Defined Benefit Pension Plan met For purposes of this Section 2.14:
(i) An entity “maintains” an Employee Program if such entity sponsors, contributes to, or provides benefits under or through such Employee Program, or has any obligation (by agreement or under applicable Laws) to contribute to or provide benefits under or through such Employee Program, or if such Employee Program provides benefits to or otherwise covers employees of such entity (or their spouses, dependents, or beneficiaries).
(ii) An entity is an “ERISA Affiliate” of Company if it would have ever been considered a single employer with Company under ERISA Section 4001(b) or part of the requirements of Section 4021(b)(13) same “controlled group” as Company for purposes of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such planSection 302(d)(8)(C).
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Samples: Merger Agreement (Zalicus Inc.)
Employee Benefit Programs. (a) Schedule 3.24 hereto lists every Employee Program (as defined belowSection 4.17(a)(i) that has been maintained (as defined below) by the Company at any time during the three-year period ending on the date of the Closing.
Seller Disclosure Schedule sets forth a complete and accurate list of the Employee Benefit Plans maintained, sponsored or contributed to, or for which there is an obligation to contribute to, by an Seller Company or any ERISA Affiliate of a Seller Company on behalf of a Business Employee (b) Each Employee Program which has ever been maintained by the Company “Seller Benefit Plans”). The terms, establishment and which has at any time been operation of each Seller Benefit Plan comply and have heretofore complied in all material respects with their terms and with all applicable Laws, and each Seller Benefit Plan intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or approval letter from been determined by the IRS regarding its qualification under such section. The Company does not knowto be so qualified, or is maintained pursuant to a valid volume submitter or prototype document, and has to the knowledge of Trican Parent and the Seller Companies, no reason to know, of any event or omission that has occurred which would reasonably be expected to cause any such Employee Program Seller Benefit Plan to lose its qualification under the applicable Code section.
(c) The Company does not know, and has no reason to know, of any failure of any party to comply with any laws applicable to the Employee Programs that have been maintained by the Companysuch qualification. With respect to any Employee Program ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 None of the ERISA or Section 4975 of the Code, or breach of any duty under ERISA or other applicable law (including, without limitation, any health care continuation requirements or any other tax law requirements, or conditions to favorable tax treatment, applicable to such plan), which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC, Merger Sub or AMG. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is pending or threatened with respect to any such Employee Program.
(d) Neither the Company Seller Companies nor any ERISA Affiliate of a Seller Company maintains, contributes to, or has incurred any liability under title IV of ERISA which has not been paid in full prior to the Closing. There has been no "accumulated funding deficiency" (whether or not waived) obligation with respect to any Employee Program ever maintained by the Company or any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program maintained by the Company or an ERISA Affiliate and subject to title IV of ERISA, there has been no (nor will be any as a result of the transaction contemplated by this Agreement) (i) "reportable event," within the meaning of ERISA Section 4043, or the regulations thereunder (for which notice the notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) no event or condition which presents a material risk of plan termination or any other event that may cause the Company or any ERISA Affiliate to incur 18 26 liability or have a lien imposed on its assets under title IV of ERISA. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable law) with respect to all Employee Programs ever maintained by the Company or any Affiliate, for all periods prior to the Closing, either have been made or have been accrued (and all such unpaid but accrued amounts are described on Schedule 3.24). Except as described in Schedule 3.24, no Employee Program maintained by the Company or an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), as of the Closing Date. Neither the Company nor any Affiliate has ever maintained a Multiemployer Plan. None of the Employee Programs ever maintained by the Company or any Affiliate has ever provided health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits. Any Employee Program Benefit Plan which has been or could be subject to Title IV of ERISA has been terminated or Code Section 412, including, but not limited to any “multiemployer plan” (as defined in accordance with Section 4041 3(37) or Section 4001(a)(3) of ERISA and the regulations promulgated thereunderERISA).
(eb) With respect to each Employee Program maintained by Seller Benefit Plan, the Company within the three (3) years preceding the Closing, complete and correct copies of the following documents (if applicable to such Employee Program) Seller Companies have previously been provided or made available to AMG: Buyer prior to the date hereof (i) each writing constituting a part of such Seller Benefit Plan, including without limitation all plan documents embodying or governing (or, to the extent no such Employee Programcopy exists, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amendedan accurate description); (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Sections 401 or 501(c)(9), and any applications for determination or approval subsequently filed with from the IRS, if applicable; and (iii) the three (3) most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; (iv) the any summary plan description for such Employee Program and any material modifications thereto, and other material written communications (or other descriptions a description of such Employee Program any oral communications) by the Seller Companies to the Business Employees concerning the extent of the benefits provided to employees) and all modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; (vi) any documents evidencing any loan to under an Employee Program that is a leveraged employee stock ownership plan; and (vii) all other materials reasonably necessary for AMG to perform any of its responsibilities with respect to any Employee Program subsequent to the Closing (including, without limitation, health care continuation requirements)Benefit Plan.
(f) Each Employee Program listed on Schedule 3.24 may be amended, terminated, modified or otherwise revised by the Company, including the elimination of any and all future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or any benefit described in Section 411(d)(6) of the Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of Section 4021(b)(13) of ERISA at all times and as a result, was not required make any filings with the Pension Benefit Guaranty Corporation including without limitation, filings in connection with the termination of such plan.
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