Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of every Employee Program that has been maintained by the Company or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves the issuance of options or other securities, or (iii) is otherwise material. (b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Employee Program which has 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 opinion or approval letter from the IRS regarding its qualification under such Section (or an application for such a determination or opinion 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 Closings (or, if earlier, the date that all of such Employee Program’s assets were distributed). No event or omission has occurred which would cause such Employee Program to lose its qualification under the applicable Code Section. The Company 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 all Employee Programs are terminable at the discretion of the Company without liability to the Company upon or following such termination. The Company has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to terminated employees, other than as required by Code Section 4980B. (c) Except as set forth on Section 2.18 of the Disclosure Schedule all grants of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant and further vesting of 6.25% per quarter thereafter for the remaining term.
Appears in 2 contracts
Samples: Series F Preferred Stock Purchase Agreement, Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc)
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of 3.24 hereto lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves during the issuance three-year period ending on the date of options or other securities, or (iii) is otherwise materialthe Closing.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each 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 opinion or approval letter from the IRS regarding its qualification under such Section (or an application for such a determination or opinion or approval letter is section. The Company does not yet due know, and has no reason to be filed with the IRS with respect to know, of 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 Closings (or, if earlier, the date that all of 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. section.
(c) The Company is does not required know, and has no reason to make know, of any payments or contributions 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 pursuant to 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 collective bargaining agreement 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 labor relations lawto such plan), and all Employee Programs are terminable at the discretion of the Company without 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 upon 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 following such termination. The Company has never maintained or contributed not waived) with respect to any Employee Program providing ever maintained by the Company or promising any health 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 nonpension 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 employees, (other than as required by Code 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 4980B.4041 of ERISA and the regulations promulgated thereunder.
(ce) Except as set forth on Section 2.18 With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the Disclosure 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 grants of stock options future benefit accruals under any Employee Program (except claims incurred but not reported under any welfare plan or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary any benefit described in Section 411(d)(6) of the date Code).
(g) The GeoCapital Corporation Defined Benefit Pension Plan met the requirements of grant Section 4021(b)(13) of ERISA at all times and further vesting 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 6.25% per quarter thereafter for the remaining termsuch 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) Section 2.18 2.14(a) of the Company Disclosure Schedule sets forth a list of every Employee Program that has been maintained by the Company or to which any of its Subsidiaries (the “Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves the issuance of options or other securities, or (iii) is otherwise materialEmployee Programs”).
(b) The terms and operation of each Each Company Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Employee Program which has 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 opinion or approval letter from the IRS regarding its qualification under with respect to such Section (qualification, or may rely on an application for such a determination or opinion or approval letter is not yet due to be filed with issued by the IRS with respect to any “disqualifying provision” within a prototype plan adopted in accordance with the meaning of Treasury Regulation Section 1.401(b)-1 requirements for such reliance, or has been timely filed and is pending with time remaining for application to the IRS) and has, in fact, been qualified under the applicable Section IRS for a determination of the Code from the effective date qualified status of such Company Employee Program through and including for any period for which such Company Employee Program would not otherwise be covered by an IRS determination. To the Closings (orKnowledge of the Company, if earlier, the date that all of such Employee Program’s assets were distributed). No no event or omission has occurred which that would reasonably be expected to cause such any Company Employee Program intended to qualify under Section 401(a) of the Code to lose its qualification or otherwise fail to satisfy the relevant requirements to provide tax-favored benefits.
(c) Each Company Employee Program has been administered in all material respects in accordance with its terms and in accordance with ERISA, the Code and other applicable Laws. No litigation 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 the Company, threatened in writing with respect to any such Company Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or other governing documents or applicable Laws) with respect to all Company Employee Programs, for all periods prior to the Closing Date, either have been made or have been accrued or otherwise adequately reserved on the Company Financial Statements except as would not be material.
(d) No Company Employee Program has been or is subject to Section 302 or Title IV of ERISA and/or Code Section. The Section 412, including a Multiemployer Plan, and the Company is does not required to make have any payments or contributions to liability for any Employee Program pursuant that is subject to any collective bargaining agreement Title IV of ERISA and that is or any applicable labor relations lawhas been maintained, and all Employee Programs are terminable at contributed to, or required to be contributed to by an ERISA Affiliate of the discretion Company. None of the Company without liability to the Company upon Employee Programs provides (or following such termination. The Company has never maintained ever provided) health care or contributed any other welfare benefits to any Employee Program providing or promising any health or other nonpension benefits to employees after their employment is terminated employees, (other than as required by part 6 of subtitle B of title I of ERISA or state continuation Laws to which the former employee pays all required premiums) or has ever promised to provide such post-termination benefits.
(e) 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 or has covered employees of such entity (or their spouses, dependents, or beneficiaries).
(ii) An entity is an “ERISA Affiliate” of the Company if it would have ever been considered a single employer with the Company or any Subsidiary of the Company under ERISA Section 4001(b) or Code Section 4980B.414(b), (c), or (m).
(cf) Except as set forth on Notwithstanding any other provision of this Agreement, the representations and warranties contained in Section 2.18 2.14(a) through Section 2.14(e) constitute the sole and exclusive representations and warranties of the Disclosure Schedule all grants of stock options or restricted stock Company and its Subsidiaries relating to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant ERISA and further vesting of 6.25% per quarter thereafter for the remaining termother Laws relating to employee benefits matters.
Appears in 2 contracts
Samples: Merger Agreement (Emmaus Life Sciences, Inc.), Merger Agreement (MYnd Analytics, Inc.)
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of 3.24, lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves during the issuance three-year period ending on the date of options or other securities, or (iii) is otherwise materialthis Agreement.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Each Employee Program which has been is 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 opinion or approval letter from the IRS regarding its qualification under such Section (or an application for such a determination or opinion 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) section and has, in fact, been qualified under the applicable Section section of the Code from the effective date of such Employee Program through and including the Closings (or, if earlier, the date that for all of such Employee Program’s assets were distributed)time periods necessary for its intended operations. No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Section. section.
(c) The Company is does not required know and has no reason to make know, of any payments or contributions 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 pursuant to maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of ERISA or Section 4975 of the Code, or breach of any collective bargaining agreement 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 labor relations lawto such plan), and all Employee Programs are terminable at the discretion of the Company without which could result, directly or indirectly, in any taxes, penalties or other liability to the LLC or 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 upon or following such termination. The Company nor any ERISA Affiliate (as defined below) (i) has never ever maintained or contributed to any Employee Program providing which has been subject to title IV of ERISA (including, but not limited to, any Multiemployer Plan (as defined below)) or promising (ii) has ever provided health care or any health or other nonpension non-pension benefits to any employees after their employment is terminated employees, (other than as required by Code Section 4980B.part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits.
(ce) Except as set forth on Section 2.18 With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the Disclosure Schedule following documents (if applicable to such Employee Program) have previously been made available to Buyer: (i) all grants of stock options documents embodying or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant governing such Employee Program, and further vesting of 6.25% per quarter thereafter any funding medium for the remaining term.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
Appears in 2 contracts
Samples: Purchase Agreement (Affiliated Managers Group Inc), Purchase Agreement (Affiliated Managers Group Inc)
Employee Benefit Programs. (a) Section 2.18 of the The Disclosure Schedule sets forth a complete and correct list of every all employee benefit plans, as defined in Section 3(3) of the Employee Program that has been maintained Retirement Income Security Act of 1974, as amended (“ERISA”), and all employment, compensation, bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, split dollar insurance, supplemental retirement, severance, change of control, loans or other benefit plans, programs, arrangements or fringe benefits, in each case, which are provided, maintained, contributed to or sponsored by the Company on behalf of current or to former directors, officers or employees of the Company, or for which the Company has contributed at any time since its inception and liability, contingent or otherwise (i) is subject to ERISAcollectively, (ii) involves the issuance of options or other securities, or (iii) is otherwise material“Benefit Plans”).
(b) The Benefit Plans have been operated and administered in accordance with their terms and operation the applicable requirements of each Employee Program comply with all the Code and applicable laws and regulations relating to such Employee Program law in all material respects. All contributions and all payments and premiums required to have been made to or under any Benefit Plan have been timely and properly made (or otherwise properly accrued if not yet due), and nothing has occurred with respect to the operation of the Benefit Plans that would cause the imposition of any liability, penalty or tax under ERISA or the Code.
(c) No Benefit Plan is subject to Title IV of ERISA, or a multiemployer plan within the meaning of Section 3(37)(A) of ERISA. Neither the Company nor any trade or business (whether or not incorporated) which is or has ever been treated as a single employer with the Company under Section 414(b), (c), (m) or (o) of the Code (“ERISA Affiliates”), has incurred any liability under title IV of ERISA or Section 412 of the Code, except for such liability that has been paid in full.
(d) There are no unfunded obligations pending or, to knowledge of the Company under Company, threatened suits, audits, examinations, actions, litigation or claims (excluding claims for benefits incurred in the ordinary course) with respect to any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Employee Program of the Benefit Plans.
(e) Each of the Benefit Plans which has been maintained by the Company and which has at any time been is intended to qualify under be “qualified” within the meaning of Section 401(a) or 501(c)(9) 401 of the Code has received a favorable determination or opinion or approval letter from the IRS regarding its qualification and no event has occurred and no condition exists which would result in the revocation of any such determination letter. Any voluntary employee benefit association which provides benefits to current or former employees of the Company, or their beneficiaries, is and has been qualified under such Section 501(c)(9) of the Code.
(or an application for such a determination or opinion or approval letter is not yet f) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will (i) result in any payment becoming due to be filed with any current or former employee or director of the IRS Company, (ii) increase any benefits under any Benefit Plan, or (iii) result in the acceleration of the time of payment, vesting or other rights with respect to any “disqualifying provision” within the meaning of Treasury Regulation Section 1.401(b)-1 such benefits.
(g) The Company does not maintain or has been timely filed and is pending with the IRS) and hashave an obligation to contribute to, in factor provide coverage under, been qualified under the applicable Section any retiree life or retiree health plans or arrangements which provide for continuing benefits or coverage for current or former officers, directors or employees of the Code from Company, except (i) as may be required under part 6 of Title I of ERISA and at the effective date sole expense of such Employee Program through and including the Closings participant or the participant’s beneficiary, or (or, if earlier, the date that all of such Employee Program’s assets were distributed). No event or omission has occurred which would cause such Employee Program to lose its qualification under the applicable Code Section. The Company is not required to make any payments or contributions to any Employee Program ii) pursuant to a medical expense reimbursement account described in Section 125 of the Code.
(h) None of the assets of any collective bargaining agreement or any applicable labor relations law, and all Employee Programs are terminable at the discretion Benefit Plan is stock of the Company without liability or any of its affiliates, or property leased to or jointly owned by the Company upon or following such termination. The Company has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to terminated employees, other than as required by Code Section 4980B.
(c) Except as set forth on Section 2.18 of the Disclosure Schedule all grants of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant and further vesting of 6.25% per quarter thereafter for the remaining termits affiliates.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Idt Corp), Stock Purchase Agreement (Film Roman Inc)
Employee Benefit Programs. (a) Section 2.18 3.11 of the Seller Disclosure Schedule sets forth a list of every Employee Program that has been currently maintained by the Company Seller or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves the issuance of options or other securities, or (iii) is otherwise materialan Affiliate.
(b) The terms and operation of each Each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Employee Program which has 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 opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such Section (or an application for such a determination or opinion or approval letter is not yet due to be filed with section. To 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 knowledge of the Code from the effective date of such Employee Program through and including the Closings (orSeller, if earlier, the date that all of such Employee Program’s assets were distributed). No no event or omission has occurred which would cause such any 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)). The Company is not required to make Each asset held under any payments such Employee Program may be liquidated or contributions 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 pursuant currently maintained by the Seller or an Affiliate.
(c) All of the Employee Programs currently maintained by the Seller and its Affiliates comply and have been maintained in all material respects with all applicable requirements of ERISA, the Code and other applicable laws. There has occurred no "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to the Employee Programs currently maintained by the Seller and its Affiliates which is likely to result in the imposition of any penalties or taxes upon Seller or its Affiliates under Section 502(i) of ERISA or Section 4975 of the Code. No litigation 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, threatened with respect to any collective bargaining agreement 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 applicable labor relations lawAffiliate, and for all Employee Programs are terminable at the discretion of the Company without liability periods prior to the Company upon Closing Date, either have been made or following such terminationhave been accrued.
(d) Neither the Seller nor any Affiliate has incurred any material liability under title IV of ERISA which has not been paid in full prior to the Closing. The Company There has never maintained been no "accumulated funding deficiency" (whether or contributed not waived) with respect to any Employee Program providing currently maintained by the Seller or promising any Affiliate and subject to Code Section 412 or ERISA Section 302. With respect to any Employee Program currently maintained by the Seller or any Affiliate and subject to Title IV of ERISA, there has been no (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 (other than as may arise from the transactions contemplated by this Agreement), and (ii) 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 Seller or any Affiliate to incur liability or have a lien imposed on its assets under Title IV of ERISA. Except as described in Section 3.11 of the Seller Disclosure Schedule, no Employee Program currently maintained by the Seller 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. None of the Employee Programs currently maintained by the Seller or any Affiliate provides health care or any other nonpension life insurance benefits to any employees after their employment is terminated employees, (other than as required by part 6 of subtitle B of title I of ERISA or applicable state insurance laws.
(e) With respect to each Employee Program currently maintained by the Seller or an Affiliate, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered to the 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 to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 4980B.
401(a) or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (ciii) Except as set forth on Section 2.18 the 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; (vi) any insurance policy (including any fiduciary liability insurance policy or fidelity bond) related to such Employee Program; (vii) any registration statement or other filing made pursuant to any federal or state securities law and (viii) all correspondence to and from any state or federal agency within the Disclosure Schedule all grants of stock options or restricted stock past year with respect to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant and further vesting of 6.25% per quarter thereafter for the remaining termsuch Employee Program.
Appears in 2 contracts
Samples: Merger Agreement (Washington Trust Bancorp Inc), Merger Agreement (First Financial Corp /Ri/)
Employee Benefit Programs. (a) Section 2.18 Schedule 3.22(a) lists each material Employee Program (as defined below) that is maintained (as defined below) by Lexecon as of the Disclosure Schedule sets forth a list of every Employee Program that has been maintained by the Company or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves the issuance of options or other securities, or (iii) is otherwise materialClosing Date.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Each Employee Program which has ever been maintained by the Company Lexecon 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 or determination, opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification or exemption from taxation, as applicable, under such Section (or an application for such a determination or opinion 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) section and has, in fact, been qualified or tax exempt, as applicable, under the applicable Section section of the Code from the effective date of such Employee Program through and including the Closings Closing (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No To the knowledge of Lexecon, no event or omission has occurred which would will cause any such Employee Program to lose its qualification under the applicable Code Sectionsection.
(c) Lexecon 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 Lexecon. The Company No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is not required pending or threatened with respect to make any payments or contributions Employee Program. With respect to any Employee Program pursuant ever maintained by Lexecon, for all periods for which the applicable statute of limitations has not expired, to any collective bargaining agreement the knowledge of Lexecon, there has occurred no "prohibited transaction," as defined in Section 406 of the 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, ERISA or other applicable labor relations lawlaw (including, and all Employee Programs are terminable at the discretion without limitation, any health care continuation requirements (under part 6 of the Company without 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 material liability to the Company upon Lexecon or following such termination. The Company Nextera.
(d) Neither Lexecon nor any ERISA Affiliate (as defined below) has never ever (i) maintained or contributed to any Employee Program providing which has been subject to Title IV of ERISA; (ii) maintained any Multiemployer Plan (as defined below); or promising (iii) except as set forth on Schedule 3.22(d), provided health care or any health or other nonpension non-pension benefits to any employees after their employment is terminated employees, (other than as required by Code Section 4980B.
(c) Except as set forth on Section 2.18 part 6 of the Disclosure Schedule all grants subtitle B of stock options title I of ERISA or restricted stock to employees or consultants have benefits that continue for a four year vesting schedule with a cliff vesting brief period of 25% on the one year anniversary of the date of grant and further vesting of 6.25% per quarter thereafter for the remaining term.time after
Appears in 2 contracts
Samples: Contribution Agreement (Nextera Enterprises Inc), Contribution Agreement (Nextera Enterprises Inc)
Employee Benefit Programs. (a) Section 2.18 3.19 of the Target Disclosure Schedule sets forth a list of every Employee Program employee benefit plan, stock option, bonus or incentive plan, severance pay policy or agreement, deferred compensation agreement, or any similar plan or agreement (an "EMPLOYEE PROGRAM") that has been maintained by Target or any of the Company Target Subsidiaries or to which Target or any of the Company Target Subsidiaries has contributed at any time since its inception during the three-year period ending on the date hereof and (i) is subject to ERISAthe Employee Retirement Income Security Act of 1974, as amended, (ii) involves the issuance of options or other securities, or (iii) is otherwise material.
(b) The terms and operation of each Employee Program comply in all material respects with all applicable laws and regulations relating to such Employee Program Program. Except as set forth in all material respects. There Section 3.19 of the Target Disclosure Schedule, there are no unfunded obligations of the Company Target under any retirement, pension, profit-profit sharing, deferred compensation plan or similar program. If required, each Each Employee Program which has been maintained by the Company Target 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 opinion or approval letter from the IRS regarding its qualification under such Section (or an application for such a determination or opinion 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) section and has, in fact, been qualified under the applicable Section section of the Code from the effective date of such Employee Program through and including the Closings Closing (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Sectionsection. The Company Target 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 all Employee Programs are terminable at the discretion . Except as set forth in Section 3.19 of the Company without liability to the Company upon or following such termination. The Company Target Disclosure Schedule, Target has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to terminated or retired employees, other than as except to the extent required by Code Section 4980B.law.
(c) Except as set forth With respect to each Employee Program maintained by Target during the three-year period ending on Section 2.18 the date hereof, complete and correct copies of the Disclosure Schedule following documents (if applicable to such Employee Program) have previously been delivered to Acquiror: (i) all grants of stock options documents embodying or restricted stock governing such Employee Program, and any funding medium for the Employee Program (including, without limitation, trust agreements) as they may have been amended to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three 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 grant such Employee Program provided to employees) and further vesting of 6.25% per quarter thereafter for the remaining termall modifications thereto; (v) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program; and (vi) any documents evidencing any loan to an Employee Program that is a leveraged employee stock ownership plan.
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of 4.23 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company Seller or to which the Company has contributed any Subsidiary of Seller at any time since its inception during the past three-years (collectively, "Seller Employee Programs"). General Partner and (i) is subject to ERISA, (ii) involves Limited Partner have not maintained any Employee Program during the issuance three-year period ending on the date of options or other securities, or (iii) is otherwise materialthe Closing.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If requiredExcept 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 or determination, opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification or exemption from taxation, as applicable, under such Section (or an application for such a determination or opinion 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) section and has, in fact, been qualified or tax exempt, as applicable, under the applicable Section section of the Code from for all periods for which the effective date applicable statute of such Employee Program limitations has not expired through and including the Closings Closing (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Section. The Company 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 all Employee Programs are terminable at the discretion of the Company without liability to the Company upon or following such termination. The Company has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to terminated employees, other than as required by Code Section 4980B.section.
(c) Except as set forth on Schedule 4.23, Seller does not 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 Seller 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 applicable statute of limitations has not expired, there has 34 occurred no "prohibited transaction," as defined in Section 2.18 406 of the Disclosure 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, 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 Seller, or any 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, to the knowledge of Seller, threatened with respect to any Employee Program.
(d) Except as disclosed on Schedule 4.23, neither Seller nor any ERISA Affiliate (as defined below) has ever (i) maintained any Employee Program which has been subject to Title IV of ERISA; (ii) maintained any Multiemployer Plan (as defined below); or (iii) 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 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).
(e) Except as set forth on Schedule 4.23, with respect to each Seller Employee Program maintained by Seller or any Subsidiary of Seller within the three years preceding the Closing, complete and correct copies of the following documents (if applicable to such Seller Employee Program) have previously been delivered to Nextera: (i) all grants 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, opinion or approval letter with respect to such Seller Employee Program under Code Sections 401 and 501(a), and any applications for determination or approval subsequently filed with the IRS; (iii) the three 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 a Seller Employee Program that is a leveraged employee stock options ownership plan; and (vii) all other materials reasonably necessary for 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) Neither Seller nor any ERISA Affiliate has any announced plan or restricted stock legally binding commitment to create any additional Employee Program which is intended to cover employees or consultants have 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) 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 four year predecessor of Seller) or any ERISA Affiliate to provide any retiree medical benefits or any other "welfare plan" (as defined in Section 3(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 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 delivery 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, without limitation, the acceleration of the vesting schedule with a cliff or exercisability of any stock options, the acceleration of the vesting of 25% on any restricted stock, or the one year anniversary acceleration or creation of any rights under any severance, parachute or change in 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 payment by Seller or any ERISA Affiliate of any 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 of grant through and further vesting of 6.25% per quarter thereafter for including the remaining termClosing Date have been made when due.
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Employee Benefit Programs. (a) Section 2.18 2.14(a) of the Company Disclosure Schedule sets forth a list of every Employee Program that has been maintained by any of the Group Companies (the “Company or to which the Employee Programs”). The Company has contributed at any time since its inception made available to Parent correct and complete copies (or, if a plan is not written, a written description) of all Company Employee Programs and amendments thereto in each case that are in effect as of the date hereof, and, to the extent applicable, (i) is subject to ERISAall related trust agreements, funding arrangements and insurance contracts now in effect, (ii) involves the issuance most recent determination letter or opinion letter received regarding the tax-qualified status of options or other securitieseach Company Employee Program intended to be so qualified, or (iii) is otherwise materialthe most recent financial statements for each Company Employee Program, (iv) the current summary plan description for each Company Employee Program, (v) all actuarial valuation reports related to any Company Employee Programs, and (vi) all material correspondence involving any Company Employee Program sent to or received from any Governmental Authority.
(b) The terms and operation of each Each Company Employee Program comply with all applicable laws and regulations relating to such Employee Program has been administered in all material respectsrespects in accordance with its terms and in accordance with applicable Laws. There are no unfunded obligations No litigation 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 the Company under any retirementCompany, pension, profit-sharing, deferred compensation plan or similar program. If required, each Employee Program which has 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 opinion or approval letter from the IRS regarding its qualification under such Section (or an application for such a determination or opinion or approval letter is not yet due to be filed with the IRS threatened in writing with respect to any “disqualifying provision” within the meaning of Treasury Regulation Section 1.401(b)-1 or has such Company Employee Program. All payments and/or contributions required to have been timely filed and is pending with the IRS) and has, in fact, been qualified made (under the provisions of any agreements or other governing documents or applicable Section of Laws) with respect to all Company Employee Programs, for all periods prior to the Code from the effective date of such Employee Program through and including the Closings (orClosing Date, if earlier, the date that all of such Employee Program’s assets were distributed). No event either have been made or omission has occurred which would cause such Employee Program to lose its qualification under the applicable Code Section. The Company is not required to make any payments have been accrued or contributions to any Employee Program pursuant to any collective bargaining agreement or any applicable labor relations law, and all Employee Programs are terminable at the discretion of otherwise adequately reserved on the Company without liability to the Company upon or following such termination. The Company has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to terminated employees, other than as required by Code Section 4980B.Financial Statements.
(c) Except as set forth on Section 2.18 Each Company Employee Program may be amended, terminated, or otherwise discontinued by the Company after the Closing Date in accordance with its terms without material liability to any of the Disclosure Schedule all grants Group Companies, Parent or any of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting their respective Subsidiaries.
(d) Neither the execution of 25% on this Agreement nor the one year anniversary consummation of the date transactions contemplated by this Agreement will, either alone or in combination with another event (such as termination of grant employment), (i) entitle any current or former employee or other service provider to any compensatory payment or benefit, including any bonus, retention, severance, retirement or job security payment or benefit, or (ii) enhance any benefits or accelerate the time or payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Company Employee Program or otherwise.
(e) With respect to each Company Employee Program subject to foreign Law (i) each such Company Employee Program required to be registered has been registered and further vesting has been maintained in all material respects in accordance with applicable foreign Law, (ii) if intended to qualify for special Tax treatment, such Company Employee Program meets all material requirements for such treatment and (iii) if required under applicable Law to be funded or book reserved, such Company Employee Program is funded or book reserved, as appropriate, in all material respects to the extent so required by applicable Law. Each Company Employee Program subject to foreign Law that provides retirement benefits is a defined contribution plan.
(f) For purposes of 6.25% per quarter thereafter for 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 or has covered current or former employees of such entity (or their spouses, dependents, or beneficiaries).
(g) Notwithstanding any other provision of this Agreement, the remaining termrepresentations and warranties contained in Section 2.14(a) through Section 2.14(e) constitute the sole and exclusive representations and warranties of the Group Companies relating to Laws relating to employee benefits matters.
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.18 3.19(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of every material Employee Program Plan that has been is maintained by the Company Acquired Companies or with respect to which the Company has contributed at any time since its inception and (i) is subject to ERISAAcquired Companies sponsor, (ii) involves the issuance of options participate in, are a party or other securitiescontribute to, or with respect to which an Acquired Company could reasonably be expected to have any liability, including every Employee Plan that will be transferred to an Acquired Company pursuant to Section 6.16 or pursuant to the Reorganization Agreement and in all cases excluding any Company Employee Plan that is a Multiemployer Plan (iiiwithout regard to the materiality qualifier applicable to the disclosure on Section 3.19(a) is otherwise materialof the Company Disclosure Schedule, the “Company Employee Plans”).
(b) The terms and operation Except as set forth in Section 3.19(b) of the Company Disclosure Schedule, each Company Employee Program comply with all applicable laws and regulations relating to such Employee Program Plan has been maintained in compliance in all material respects, with its terms and with the requirements prescribed by applicable Law with respect to such Company Employee Plan. There are no unfunded obligations No Action is pending or, to the Company’s Knowledge, is threatened by or on behalf of any Company Employee Plan, by any employee or beneficiary covered under any such Company Employee Plan, as applicable, or otherwise involving any Company Employee Plan (other than routine claims for benefits).
(c) No Combined Company, nor any “party in interest” or “disqualified person” with respect to the Company Employee Plans, has engaged in or been a party to a “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975(c) of the Code) not within an exemption applying thereto under Section 408 of ERISA or Section 4975(d) of the Code. Except as set forth in Section 3.7(a) of the Company under Disclosure Schedule, neither the Combined Companies nor, to the Company’s Knowledge, any retirementother fiduciary of any Company Employee Plan has any material liability for breach of fiduciary duty or any other failure to act or comply with applicable Law in connection with the administration or investment of the assets of any Company Employee Plan.
(d) Copies of the following documents, pensionwith respect to each Company Employee Plan, profitwhere applicable, have been made available to Purchaser: (i) all documents embodying or governing such Company Employee Plan and any trust or other funding medium for the Company Employee Plan; (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 all modifications thereto; and (vi) all material non-sharing, deferred compensation plan routine correspondence to and from any state or similar program. If requiredfederal agency in the last three years.
(e) Except as set forth in Section 3.19(e) of the Company Disclosure Schedule, each Company Employee Program which has been maintained by the Company and which has at any time been Plan that is intended to qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable determination or opinion or approval letter from the IRS regarding its qualification under with respect to such Section (qualification, or may rely on an application for such a determination or opinion or approval letter is not yet due to be filed with 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 Plan for any period for which such Company Employee Plan would not otherwise be covered by an IRS determination.
(f) Except as set forth in Section 3.19(f) of the Company Disclosure Schedule, no Company Employee Plan is a plan subject to Title IV of ERISA, Section 412 of the Code, Section 302 of ERISA (each, a “disqualifying provisionTitle IV Plan”).
(g) With respect to each Title IV Plan to which the Combined Companies made, or were required to make, contributions at any time during the plan year that includes the Closing Date and the five (5) preceding plan years:
(i) No such Title IV Plan is currently in “at risk” status 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 430 of the Code from or Section 303(i) of ERISA.
(ii) None of the effective date Combined Companies has engaged in any transaction described in Section 4069 or 4212(c) of such Employee Program through and including the Closings ERISA.
(or, if earlier, the date that all of such Employee Program’s assets were distributed). No event or omission has occurred which would cause such Employee Program to lose its qualification under the applicable Code Section. The Company 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 all Employee Programs are terminable at the discretion iii) Except as set forth in Section 3.19(g)(iii) of the Company without Disclosure Schedule, no liability (other than for premiums to the Pension Benefit Guarantee Corporation (“PBGC”)) under Title IV of ERISA has been or, to the Knowledge of the Company, is expected to be incurred by the Combined Companies.
(iv) All contributions required to be made with respect thereto (whether pursuant to the terms of such Title IV Plan or applicable Law) have been made when due.
(v) The PBGC has not instituted any proceedings to terminate any such Title IV Plan and, to the Knowledge of the Company, no condition exists that presents a material risk that such proceedings will be instituted.
(vi) No Combined Company upon or following such termination. The Company has never maintained would reasonably be expected to have any liability with respect to a Title IV Plan sponsored or contributed to by an ERISA Affiliate (other than another Combined Company).
(h) Section 3.19(h) of the Company Disclosure Schedule sets forth a true and complete list of each Multiemployer Plan, to which the Combined Companies contribute, or is or was required to contribute at any time during the plan year which includes the Closing Date and the five (5) preceding plan years, or to which or with respect to which the Combined Companies have material liability. Except as disclosed in Section 3.19(h) of the Company Disclosure Schedule, none of the Combined Companies (i) has, within the preceding six (6) years, withdrawn in a complete or partial withdrawal, as such terms are defined in Sections 4203 and 4205 of ERISA, from any such Multiemployer Plan or (ii) engaged in any transaction described in Section 4202 of ERISA that has resulted in any contingent liability of the Combined Companies that has not been satisfied in full. Section 3.19(h) of the Company Disclosure Schedule sets forth the amount of any withdrawal liability that has previously been assessed against the Combined Companies that remains unpaid, and the most recent estimate received from each such Multiemployer Plan of the amount of any additional withdrawal liability under each such Multiemployer Plan that would be assessed against the Combined Companies if a complete withdrawal from each such Multiemployer Plan occurred during the applicable year identified in the estimate.
(i) None of the Company Employee Program providing Plans provides health care or promising any health or other nonpension non-pension benefits to any employees of the Company Group or any of their respective Subsidiaries after their employment is terminated employees, (other than as required by Code Part 6 of Subtitle B of Title I of ERISA or similar state Law or pursuant to the terms of any severance plan, agreement or arrangement as set forth in Section 4980B.3.19(a) of the Company Disclosure Schedule).
(cj) Each Company Employee Plan that constitutes a nonqualified deferred compensation plan within the meaning of Section 409A of the Code (each, a “NQDC Plan”) has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder. No payment to be made under any Company Employee Plan is, or to the Company’s Knowledge, will be, subject to penalties, Taxes or interest under Section 409A(a)(1) of the Code.
(k) Except as set forth on in Section 2.18 3.19(k) of the Company Disclosure Schedule all grants of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary Schedule, none of the date execution and delivery of grant this Agreement or any Ancillary Agreement or the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement (either alone or in conjunction with any other event) will: (i) result in, or cause the accelerated vesting payment, funding or delivery of, or increase the amount or value of, any payment or benefit under any Company Employee Plan to any employee, officer, director or other service provider of the Combined Companies; or (ii) result in any “parachute payment” as defined in Section 280G(b)(2) of the Code (whether or not such payment is considered to be reasonable compensation for services rendered) that would not be deductible by the Acquired Companies.
(l) Except as set forth in Section 3.19(l) of the Company Disclosure Schedule, there have been no modifications of Company Employee Plans or creation of new Company Employee Plans since January 1, 2013, that materially increased the costs of the Company Employee Plans, in the aggregate.
(m) The Acquired Companies and further vesting their respective Affiliates (including the other Combined Companies) do not have any obligation to gross-up, indemnify or otherwise reimburse any employee or individual consultant for any Tax incurred by such employee or individual consultant, including under Section 409A or 4999 of 6.25% per quarter thereafter for the remaining termCode, or any interest or penalty related thereto.
(n) No Company Employee Plan is subject to the Laws of a country other than United States.
Appears in 1 contract
Samples: Securities Purchase Agreement (Builders FirstSource, Inc.)
Employee Benefit Programs. (a) Seller's Plan (as defined in Section 2.18 of the Disclosure Schedule sets forth a list of every Employee Program that has been maintained by the Company or to which the Company has contributed at any time since its inception and (i1.13(e)) is subject to ERISA, (ii) involves the issuance of options or other securities, or (iii) is otherwise material.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Employee Program which has 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 opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such Section (or an application for such a determination or opinion or approval letter is not yet due to be filed with section 401(a) of the IRS with respect to any “disqualifying provision” within the meaning of Treasury Regulation Section 1.401(b)-1 or has been timely filed Code and is pending with the IRS) and it has, in fact, been continuously qualified under the applicable Section such section of the Code from since the effective date of such Employee Program through and including the Closings (or, if earlier, the date that all of such Employee Program’s assets were distributed)Seller's Plan. No event or omission has occurred which would cause such Employee Program Seller's Plan to lose its qualification under Section 401(a) of the Code.
(b) Seller does not know, and has no reason to know, of any failure of any party to comply with any laws applicable Code Sectionto Seller's Plan. The Company is not required to make any payments or contributions With respect to any Employee Program pursuant ever maintained by Seller, there has occurred no "prohibited transaction," as defined in Section 406 of the 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. 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 collective bargaining agreement or such Employee Program.
(c) Neither Seller nor any applicable labor relations law, and all Employee Programs are terminable at the discretion of the Company without liability to the Company upon or following such termination. The Company Affiliate (as defined below) (i) has never ever maintained or contributed to any Employee Program providing which has been subject to Title IV of ERISA (including, but not limited to, any Multiemployer Plan (as defined below)) or promising (ii) has ever provided health care or any health or other nonpension non-pension benefits to any employees after their employment is terminated employees, (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.
(d) With respect to Seller's Plan, complete and correct copies of the following documents have previously been delivered to Buyer: (i) all documents embodying or governing such plan, and any funding medium for the 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 plan under Code Section 4980B.401, and any applications for determination or approval subsequently filed with the IRS; (iii) the three most recently filed IRS Forms 5500, with all applicable schedules and accountants' opinions attached thereto; and (iv) the summary plan description for such plan (or other descriptions of such Employee Program provided to employees) and all modifications thereto;
(ce) Except as set forth on Section 2.18 For purposes of the Disclosure Schedule all grants of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant and further vesting of 6.25% per quarter thereafter for the remaining term.this section:
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule SCHEDULE 2.21 sets forth a list of every Employee Program (as defined in paragraph (g)(i) below) that has been maintained by the Company or to which the Company has contributed and its Subsidiaries at any time since its inception and (i) is subject to ERISA, (ii) involves during the issuance of options period beginning or other securities, or (iii) is otherwise materialending on the date hereof.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each 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 opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such Section (or an application for section. Each such a determination or opinion 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 Employee Program has, in fact, been remained qualified under the applicable Section section of the Code from the effective date of the favorable determination letter for such Employee Program through and including the Closings date hereof (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Section. section.
(c) The Company is not required in compliance with any laws applicable with respect to make the Employee Programs that have been maintained by the Company or any payments or contributions of its Subsidiaries. With respect to any Employee Program pursuant ever maintained by the Company, any Subsidiary or any affiliate thereof, there has been no "prohibited transaction" as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975, 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 obligation of indemnification or contribution) for any damages, penalties, or taxes, or any other loss or expense. 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 collective bargaining agreement such Employee Program.
(d) None of the Company, any of its Subsidiaries or any applicable labor relations law, and all Employee Programs are terminable at the discretion affiliate thereof has incurred any liability under Title IV of the Company without liability ERISA which has not been paid in full prior to the Company upon date hereof. There is no "accumulated funding deficiency" (whether or following such termination. The Company has never maintained or contributed not waived) with respect to any Employee Program providing maintained by the Company or promising any health Subsidiary thereof 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 affiliate thereof and subject to Title IV of ERISA there (i) has been no "reportable event," within the meaning of Section 4043 of ERISA (for which 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. All payments and/or contributions required to have been made (under the provisions of any agreements or other nonpension governing documents or applicable law) with respect to all Employee Programs maintained by the Company or any of its Subsidiaries, for all periods prior to the date hereof, either have been made or have been accrued (and all such unpaid but accrued amounts are described on SCHEDULE 2.21). Except as described in SCHEDULE 2.21, no Employee Program maintained by the Company, any of its Subsidiaries or any affiliate thereof and subject to title IV of ERISA has ever had any "unfunded benefit liabilities" within the meaning of Section 4001(a)(18) of ERISA, as of the date hereof. Except as described in SCHEDULE 2.21, none of the Employee Programs maintained by the Company or any Subsidiary thereof has ever provided or promised health care or non-pension benefits to terminated employees, former employees (other than as required by Code Section 4980B.Part 6 of subtitle B of Title I of ERISA).
(ce) With respect to each Employee Program maintained by the Company or any of its Subsidiaries within the three (3)years preceding the date hereof, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered to Parent: (i) all documents embodying or governing such Employee Program, as they may have been amended to the date hereof; (ii the most recent IRS determination letter with respect to such Employee Program and any applications for determination subsequently filed with the IRS; (ii) the three (3)(most recently filed IRS Forms 5500, with all applicable schedules 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; and (vi) any insurance policy (including any fiduciary liability insurance policy) related to such Employee Program.
(f) Except as set forth on Section 2.18 disclosed in SCHEDULE 2.21 hereto, no collective bargaining agreement or other contract, written or oral, with any trade or labor union, or association or organization of the Disclosure Schedule all grants of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary however denominated is in effect as of the date hereof with respect to the Company, any of grant its Subsidiaries or any of their employees, and further vesting (ii) none of 6.25% per quarter thereafter for the remaining termCompany, any of its Subsidiaries or any affiliate has ever maintained or participated in any multiemployer plan, as defined in Section 3(37) of ERISA.
(g) For purposes of this section:
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.18 4.13(a) of the Seller Disclosure Schedule sets forth a list of every Employee Program that has been each material “employee benefit plan” (within the meaning of Section 3(3) of ERISA), each “multiemployer” plan (within the meaning of Section 4001 of ERISA, and each other bonus, incentive compensation, deferred compensation, profit sharing, severance, equity plan, award or arrangement (such as an option plan, stock, restricted stock, stock options, stock purchase, stock appreciation right or performance share), or any other similar plan, agreement, policy or understanding (whether written or oral, qualified or nonqualified), which provides benefits, or describes policies or procedures sponsored or maintained by the Company Seller or to any of its Subsidiaries in which the Company has contributed at Business Employees participate in any time since its inception and country in the world (i) is subject to ERISAcollectively, (ii) involves the issuance of options or other securities, or (iii) is otherwise material“Business Benefit Plans”).
(b) The terms Seller has provided to Buyer complete and operation accurate copies of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, following with respect to each Employee Program which has 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 Business Benefit Plans: (i) plan document and any amendment thereto; (ii) trust agreement or insurance contract (including any fiduciary liability policy or fidelity bond), if any; (iii) most recent IRS determination or opinion or approval letter from the IRS regarding its qualification under such Section letter, if any; (or an application for such a determination or opinion or approval letter is not yet due iv) most recent annual report on Form 5500 required to be filed with the IRS with respect to (if any “disqualifying provision” within the meaning of Treasury Regulation Section 1.401(b)-1 or has been timely filed such report was required); and is pending with the IRS(v) 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 Closings (or, if earlier, the date that all of such Employee Program’s assets were distributed). No event or omission has occurred which would cause such Employee Program to lose its qualification under the applicable Code Section. The Company 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 all Employee Programs are terminable at the discretion of the Company without liability to the Company upon or following such termination. The Company has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to terminated employees, other than as required by Code Section 4980B.summary plan description.
(c) Except as set forth on in Section 2.18 4.13(c) of the Seller Disclosure Schedule Schedule, each of the Business Benefit Plans, which are maintained or contributed to by Seller or any of its Subsidiaries, has been and is administered in compliance with its terms in all grants material respects and has been and is in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable Laws, except as would not, individually or in the aggregate, have a Business Material Adverse Effect.
(d) Each of the Business Benefit Plans that is intended to be a qualified plan within the meaning of Code Section 401(a) has received a favorable determination or opinion letter from the IRS regarding its qualification thereunder.
(e) Except as set forth in Section 4.13(e) of the Seller Disclosure Schedule, neither Seller nor any of its Subsidiaries provides or has agreed to provide healthcare or any other non-pension benefits to any Business Employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA or state health continuation laws).
(f) Except with respect to the agreements disclosed in Section 4.13(f) of the Seller Disclosure Schedule, neither Seller nor any of its Subsidiaries is a party to any written (i) agreement with any director, or Key Employee of Seller or any of its Subsidiaries with respect to the Business (A) the benefits of which are contingent, 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 term of employment or compensation guarantee, or (C) providing severance benefits or other benefits after the termination of employment of such director or Key Employee; (ii) agreement or plan binding Seller or any of its Subsidiaries, including any stock options or option plan, stock appreciation right plan, restricted stock to employees plan, stock purchase plan or consultants have a four year vesting schedule with a cliff severance benefit plan, any of the benefits of which shall be increased, or the vesting of 25% 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 one year anniversary basis of any of the date transactions contemplated by this Agreement; or (iii) any agreement, plan or other arrangement with any Key Employee of grant and further vesting Seller or its Subsidiaries that could reasonably be expected to give rise directly or indirectly to the payment of 6.25% per quarter thereafter for any amount that would not be deductible by Buyer under Section 280G of the remaining termCode.
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of every The Company has never maintained (as defined below) an Employee Program that has been maintained by the Company or to which the Company has contributed at any time since its inception and (ias defined below) is subject to ERISA, (ii) involves the issuance of options or other securities, or (iii) is otherwise material.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Employee Program which has 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.
(b) Each Employee Program that has ever been maintained by the Company has been maintained in compliance in all material respects 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 Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code has received (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 determination tax treatment, applicable to such plan or opinion to any person in regard to such plan), which could result, directly or approval letter from indirectly (including, without limitation, through any obligation of indemnification or contribution), in any taxes, penalties or other liability to the IRS regarding Company or any of its qualification under such Section affiliates. No litigation, arbitration or governmental administrative proceeding (or an application investigation) or other proceeding (other than those relating to routine claims for such a determination or opinion or approval letter benefits) is not yet due pending or, to be filed with the IRS best knowledge of the Company, threatened with respect to any “disqualifying provision” within such Employee Program.
(c) Neither the meaning of Treasury Regulation Section 1.401(b)-1 or Company nor any Affiliate (as defined below) (i) has ever maintained any Employee Program which has been timely filed and is pending with the IRS) and has, in fact, been qualified under the applicable subject to Title IV of ERISA or Section 412 of the Code from the effective date of such Employee Program through and including the Closings (orincluding, if earlierbut not limited to, the date that all of such Employee Program’s assets were distributedany Multiemployer Plan (as defined below). No event ) or omission (ii) has occurred which would cause such Employee Program to lose its qualification under the applicable Code Section. The Company is not required to make ever provided health care or any payments or contributions other non-pension benefits to any Employee Program pursuant to any collective bargaining agreement or any applicable labor relations law, and all Employee Programs are terminable at the discretion of the Company without liability to the Company upon or following such termination. The Company has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to employees after their employment is terminated employees, (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.
(d) With respect to each Employee Program maintained by or on behalf of the Company or any affiliate since its incorporation, complete and correct copies of the following documents (if applicable to such Employee Program) have previously been delivered to Goodxxx, Xxocter & Hoar XXX: (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 to the date hereof; (ii) the most recent IRS determination or approval letter with respect to such Employee Program under Code Section 4980B.401 or 501(c)(9), and any applications for determination or approval subsequently filed with the IRS; (iii) the three 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 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).
(ce) Except as set forth on For purposes of this Section 2.18 of the Disclosure Schedule all grants of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant and further vesting of 6.25% per quarter thereafter for the remaining term.2.20:
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of 2.24 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves during the issuance three-year period ending on the date of options or other securities, or (iii) is otherwise materialthe Closing.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each 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 or determination, opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification or exemption from taxation, as applicable, under such Section (or an application for such a determination or opinion 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) section and has, in fact, been qualified or tax exempt, as applicable, under the applicable Section section of the Code from the effective date of such Employee Program through and including the Closings Closing (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Section. 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. No litigation, arbitration, or governmental administrative proceeding (or investigation) or other proceeding (other than those relating to routine claims for benefits) is not required to make any payments pending or contributions threatened with respect to any Employee Program pursuant to any collective bargaining agreement or any applicable labor relations law, and all Employee Programs are terminable at the discretion of Program.
(d) Neither the Company without liability to the Company upon or following such termination. The Company nor any Affiliate (as defined below) has never ever (i) maintained or contributed to any Employee Program providing which has been subject to Title IV of ERISA; (ii) maintained any Multiemployer Plan (as defined below); or promising (iii) provided health care or any health or other nonpension non-pension benefits to any employees after their employment is terminated employees, (other than as required by Code Section 4980B.part 6 of subtitle B of title I of 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).
(ce) Except as set forth on Section 2.18 With respect to each Employee Program maintained by the Company within the three years preceding the Closing, complete and correct copies of the Disclosure Schedule following documents (if applicable to such Employee Program) have previously been delivered to Buyer: (i) all grants 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, opinion or approval letter with respect to such Employee Program under Code Sections 401 and 501(a), and any applications for determination or approval subsequently filed with the IRS; (iii) the three 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 options ownership plan; and (vii) all other materials reasonably necessary for 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 restricted stock legally binding commitment to create any additional Employee Program which is intended to cover employees or consultants have a four year 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 Plan listed on Schedule 2.24 may be amended, terminated, modified or otherwise revised prospectively by the 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 (including, without limitation, the acceleration of the vesting schedule with a cliff or exercisability of any stock options, the acceleration of the vesting of 25% on any restricted stock, or the one year anniversary acceleration or creation of any rights under any severance, parachute or change in control agreement).
(j) Each Employee Program and related trust agreement or other funding instrument, as applicable, which covers or has covered employees or former employees of the date 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 grant and further vesting of 6.25% per quarter thereafter the Company or any Affiliate (with respect to its relationship with such entities) that, individually or collectively, provides for the remaining termpayment by the Company or any Affiliate of any 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.
(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 including the Closing Date have been made when due.
(m) For purposes of this section:
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of SCHEDULE 5.20 lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves during the issuance of options or other securities, or (iii) is otherwise materialthree-year period ending on the Closing Date.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each 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 opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such Section (or an application for such a determination or opinion 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) section and has, in fact, been qualified under the applicable Section section of the Code from the effective date of such Employee Program through and including the Closings Closing (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Section. section.
(c) The Company is does not required know and has no reason to make know, of any payments or contributions 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 pursuant to ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any collective bargaining agreement 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 labor relations lawto such plan), and all Employee Programs are terminable at the discretion of the Company without which could result, directly or indirectly, in any taxes, penalties or other liability to the Company upon or following Zoll. 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 termination. The Employee Program.
(d) Neither the Company nor any Affiliate (as defined below) (i) has never ever maintained or contributed to any Employee Program providing which has been subject to title IV of ERISA (including, but not limited to, any Multiemployer Plan (as defined below)) or promising (ii) has ever provided health care or any health or other nonpension non-pension benefits to any employees after their employment is terminated employees, (other than as required by Code Section 4980B.part 6 of subtitle B of title I of ERISA) or has ever promised to provide such post-termination benefits.
(ce) Except as set forth on Section 2.18 With respect to each Employee Program maintained by the Company within the three years preceding the Closing, complete and correct copies of the Disclosure Schedule following documents (if applicable to such Employee Program) have previously been delivered to Zoll: (i) all grants of stock options documents embodying or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant governing such Employee Program, and further vesting of 6.25% per quarter thereafter any funding medium for the remaining termEmployee 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 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.
(f) For purposes of this section:
Appears in 1 contract
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of SCHEDULE 3.24 hereto lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves during the issuance three-year period ending on the date of options or other securities, or (iii) is otherwise materialthe Closing.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each 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 opinion or approval letter from the IRS regarding its qualification under such Section (or an application for such a determination or opinion 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) section and has, in fact, been qualified under the applicable Section section of the Code from the effective date of such Employee Program through and including the Closings Closing (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Section. section.
(c) The Company is does not required know, and has no reason to make know, of any payments or contributions 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 pursuant to ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, or breach of any collective bargaining agreement 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 labor relations lawto such plan), and all Employee Programs are terminable at the discretion of the Company without which could result, directly or indirectly, in any taxes, penalties or other liability to the Company upon or following the 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 termination. The Employee Program.
(d) Neither the Company nor any ERISA Affiliate (as defined below) (i) has never ever maintained or contributed to any Employee Program providing which has been subject to title IV of ERISA (including, but not limited to, any Multiemployer Plan (as defined below)) or promising (ii) has ever provided health care or any health or other nonpension non-pension benefits to any employees after their employment is terminated employees, (other than as required by Code Section 4980B.part 6 of subtitle B of title I of ERISA or by any similar provision of state law) or has ever promised to provide such post-termination benefits.
(ce) Except as set forth on Section 2.18 With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the Disclosure Schedule following documents (if applicable to such Employee Program) have previously been delivered to the Buyer: (i) all grants of stock options documents embodying or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant governing such Employee Program, and further vesting of 6.25% per quarter thereafter any funding medium for the remaining termEmployee 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 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) For purposes of this section:
Appears in 1 contract
Samples: Asset Purchase Agreement (Boston Private Financial Holdings Inc)
Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of SCHEDULE 2.21 lists every Employee Program (as defined below) that Seller has been maintained by the Company maintained, contributed to or to under which the Company it has contributed any liability at any time since its inception December 31, 1992. With respect to each such Employee Program, Seller has made available to Buyer true and (i) is subject to ERISA, (ii) involves complete copies of the issuance of options most recent summary plan or other securities, or (iii) is otherwise materialwritten description.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each Each Employee Program which has ever been maintained by Seller or any Affiliate with respect to any employees of Seller engaged in employment related to the Company Business 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 opinion or approval letter from the IRS Internal Revenue Service ("IRS") regarding its qualification under such Section (or an application for such a determination or opinion 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) section and has, in fact, been continuously qualified under the applicable Section section of the Code from since the effective date of such Employee Program through and including the Closings (or, if earlier, the date that all of such Employee Program’s assets were distributed). No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Section. The Company is not section.
(c) All payments and/or contributions required to make have been made (under the provisions of any payments agreements or contributions other governing documents or applicable law) with respect to any Employee Program pursuant to any collective bargaining agreement or any applicable labor relations law, and all Employee Programs are terminable at ever maintained by Seller or any Affiliate with respect to any employees of Seller engaged in employment related to the discretion Business, have been timely made.
(d) Except as described in SCHEDULE 2.21, no Employee Program maintained by Seller or any Affiliate with respect to any employees of Seller engaged in employment related to the Business (i) that is subject to Title IV of ERISA (other than a Multiemployer Plan, as defined in Section 3(37) of ERISA) has any "unfunded benefit liabilities" within the meaning of ERISA Section 4001(a)(18), or (ii) fails to comply with any provision of ERISA, other applicable law, or any agreement which, in the case of either (i) or (ii) could subject Buyer to any material 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. Neither Seller nor any Affiliate has ever maintained a Multiemployer Plan, covering any employees of Seller engaged in employment related to the Business. None of the Company without liability Employee Programs ever maintained by Seller or any Affiliate has ever provided health care or any other non-pension benefits to any employees of Seller engaged in employment related to the Company upon or following such termination. The Company has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to Business after their employment is terminated employees, (other than as required by Code Section 4980B.part 6 of subtitle B of Title I of ERISA) or has ever promised to provide such post-termination benefits.
(ce) Except as set forth on Section 2.18 For purposes of the Disclosure Schedule all grants of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant and further vesting of 6.25% per quarter thereafter for the remaining term.this section:
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Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule sets forth a list of 3.22 hereto lists every Employee Program (as defined below) that has been maintained (as defined below) by the Company or to which the Company has contributed at any time since its inception and (i) is subject to ERISA, (ii) involves during the issuance three-year period ending on the date of options or other securities, or (iii) is otherwise materialthe Closing.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respects. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each 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 opinion or approval letter from the IRS regarding its qualification under such Section section (or an application for such is entitled to rely on a determination or opinion or approval letter is not yet due to be filed with the IRS as received by any sponsor with respect to any “disqualifying provision” within the meaning of Treasury Regulation Section 1.401(b)-1 a standard master or has been timely filed and is pending with the IRSprototype plan, as permitted under applicable law) and has, in fact, been qualified under the applicable Section section of the Code from the effective date of such Employee Program through and including the Closings Closing (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission has occurred which would cause any such Employee Program to lose its qualification under the applicable Code Section. section.
(c) The Company is does not required know of any failure of any party to make comply with any payments or contributions laws applicable to the Employee Programs that have been maintained by the Company. With respect to any Employee Program pursuant to ever maintained by the Company, there has occurred no "prohibited transaction," as defined in Section 406 of ERISA or Section 4975 of the Code, or breach of any collective bargaining agreement 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 labor relations lawto such plan), and all Employee Programs are terminable at the discretion of the Company without which could result, directly or indirectly, in any taxes, penalties or other liability to the Company upon or following the Surviving Corporation. 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 termination. The Employee Program.
(d) Neither the Company nor any ERISA Affiliate (as defined below) (i) has never ever maintained or contributed to any Employee Program providing which has been subject to title IV of ERISA (including, but not limited to, any Multiemployer Plan (as defined below)) or promising (ii) has ever provided health care or any health or other nonpension non-pension benefits to any employees after their employment is terminated employees, (other than as required by Code part 6 of subtitle B of title I of ERISA or Section 4980B.4980B of the Code) or has ever promised to provide such post-termination benefits.
(ce) Except as set forth on Section 2.18 With respect to each Employee Program maintained by the Company within the three (3) years preceding the Closing, complete and correct copies of the Disclosure Schedule following documents (if applicable to such Employee Program) have been made available to Parent: (i) all grants of stock options documents embodying or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant governing such Employee Program, and further vesting of 6.25% per quarter thereafter any funding medium for the remaining termEmployee 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 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) For purposes of this section:
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Employee Benefit Programs. (a) Section 2.18 of the Disclosure Schedule 2.24 attached hereto sets forth a list of every Employee Program (as defined below) that has been maintained by the Company Seller or to which the Company has contributed an Affiliate at any time since its inception and (i) is subject to ERISA, (ii) involves during the issuance of options or other securities, or (iii) is otherwise material.
(b) The terms and operation of each Employee Program comply with all applicable laws and regulations relating to such Employee Program in all material respectssix-year period ending on the Closing Date. There are no unfunded obligations of the Company under any retirement, pension, profit-sharing, deferred compensation plan or similar program. If required, each 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 opinion or approval letter from the IRS regarding its qualification under such Section (or an application for such a determination or opinion 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) section and has, in fact, been qualified under the applicable Section section of the Code from the effective date of such Employee Program through and including the Closings Closing Date (or, if earlier, the date that all of such Employee Program’s 's assets were distributed). No event or omission 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)). The Company is not required to make any payments or contributions With respect to any Employee Program pursuant ever maintained by the Seller or any Affiliate, there has been no (i) "prohibited transaction," as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Code Section 4975, (ii) non-deductible contribution, or (iii) failure to comply with any provision of ERISA, other applicable law, or any agreement which, in the case of any of (i), (ii) or (iii), could subject the Seller or any Affiliate 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 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 collective bargaining agreement such Employee Program. All payments and/or contributions required to have been made (under the provisions of any agreements or any other governing documents or applicable labor relations law, and ) with respect to all Employee Programs are terminable at ever maintained by the discretion of the Company without liability Seller or any Affiliate, for all periods prior to the Company upon or following such termination. The Company has never maintained or contributed to any Employee Program providing or promising any health or other nonpension benefits to terminated employees, other than as required by Code Section 4980B.
(c) Except as set forth on Section 2.18 of the Disclosure Schedule all grants of stock options or restricted stock to employees or consultants have a four year vesting schedule with a cliff vesting of 25% on the one year anniversary of the date of grant and further vesting of 6.25% per quarter thereafter for the remaining term.Closing
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