Employee Benefits Matters. Section 3.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Laws.
Appears in 4 contracts
Samples: Merger Agreement (Duke Energy CORP), Merger Agreement (Piedmont Natural Gas Co Inc), Merger Agreement
Employee Benefits Matters. (i) Section 3.10(a3.01(l)(i) of the Company Disclosure Schedule Letter sets forth a complete and accurate listcorrect list of all material “employee welfare benefit plans” (as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), all material “employee pension benefit plans” (as defined in Section 3(2) of ERISA) (each, a “Pension Plan”) and all other material Benefit Plans and material Benefit Agreements that, in each case, are in effect as of the date of this Agreement. The Company has delivered or made available to Parent complete and correct copies of the following with respect to each material Benefit Plan and each material Benefit Agreement, to the extent applicable: (A) such Benefit Plan and Benefit Agreement (or, in the case of any unwritten Benefit Plans or Benefit Agreements, written descriptions thereof), including any amendments thereto; (B) the most recent annual report, or such similar reports, statements, information returns or material correspondence required to be filed with, delivered to or received by any Governmental Entity; (C) the most recent summary plan description (if any), and any summary of material modifications; (D) each trust agreement and group annuity or insurance Contract and other funding or payment documents; and (E) the most recent actuarial valuations for each Benefit Plan. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (1) each Benefit Plan and Benefit Agreement has been administered, funded and, to the extent applicable, the assets of such Benefit Plan or Benefit Agreement have been invested in accordance with its terms and (2) the Company and its Subsidiaries and each Benefit Plan and Benefit Agreement are in compliance with applicable Law, including ERISA and the Code, and the terms of any applicable collective bargaining agreements or other labor union Contracts.
(ii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (A) each Pension Plan intended to be tax qualified under the Code has been the subject of a favorable determination, qualification or opinion letter from the U.S. Internal Revenue Service (the “IRS”) to the effect that such Pension Plan is qualified and exempt from United States Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, no such letter has been revoked (nor, as of the date of this Agreement, has revocation been threatened) and no event has occurred since the date of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement letter or application therefor relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company such Pension Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not that could reasonably be expected to adversely affect the qualification of such Pension Plan or increase the costs relating thereto or require security under Section 307 of ERISA, and (B) each Benefit Plan required to have a Company Material Adverse Effect. There are been approved by any non-United States Governmental Entity (or intended to have been approved to obtain any beneficial tax or other status) has been so approved or timely submitted for approval, no pending orsuch approval has been revoked (nor, to the Knowledge as of the Companydate of this Agreement, threatened claims (other than claims for benefits in has revocation been threatened) and no event has occurred since the ordinary course) with respect date of the most recent approval or application therefor relating to any Company Plans, nor is any Company such Benefit Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would could reasonably be expected to have affect any such approval relating thereto or increase the costs relating thereto.
(iii) Neither the Company nor any Commonly Controlled Entity has sponsored, maintained, contributed to or been obligated to sponsor, maintain or contribute to, or has any actual or contingent liability under, any Benefit Plan that is a Company Material Adverse Effect. All Company Plans that are “employee pension plansdefined benefit plan” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(373(35) of ERISA) or a plan “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA), a (“Multiemployer Plan”), or that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date that is otherwise a defined benefit pension plan, and except as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect; (v) no , neither the Company nor any Commonly Controlled Entity could incur any liability with respect to any such plan has applied for (under Title IV of ERISA).
(iv) Except as would not be reasonably expected to have, individually or received in the aggregate, a waiver Material Adverse Effect, no Benefit Plan or Benefit Agreement that provides welfare benefits, whether or not subject to ERISA (each, a “Welfare Plan”) provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except where the minimum funding standards cost thereof is borne entirely by the former employee (or an extension of any amortization period within the meaning of his or her eligible dependents or beneficiaries) or as required by Section 412 4980B(f) of the Code or Sections 302 any similar state statute or 303 of ERISA that is currently foreign Law.
(v) Except as provided in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect5.04, the Company execution of this Agreement, the obtaining of Shareholder Approval and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions Merger and the other transactions contemplated by this Agreement will not, either alone or in combination with another event, (i) entitle any current or former director, employee or officer of the Company or any of its Subsidiaries to severance pay, unemployment compensation or any other payment or benefit, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, vesting or increase the amount of compensation or benefits due any such director, employee or officer. Except as set forth on Section 3.10(d, (iii) require the funding (through a grantor trust or otherwise) of any compensation or benefit, (iv) limit or restrict the Company Disclosure ScheduleCompany’s ability to merge, no amounts payable under amend or terminate any of the Company Plans will Benefit Plan or Benefit Agreement or (v) cause any amount to fail to be deductible for federal income tax purposes by virtue reason of section Section 280G of the Code. This Section 3.10 constitutes .
(vi) Except as would not reasonably be expected to have, individually or in the sole and exclusive representation and warranty aggregate, a Material Adverse Effect, neither the Company nor any of its Subsidiaries has received notice of any, and, to the knowledge of the Company regarding pension and employee benefit liabilitiesCompany, obligationsthere are no, pending investigations by any Governmental Entity with respect to, or compliance pending termination proceedings or other claims (except claims for benefits payable in the normal operation of the Benefit Plans and Benefit Agreements), suits or proceedings against or involving or asserting any rights or claims to benefits under, any Benefit Plan or Benefit Agreement.
(vii) No amount, economic benefit or other entitlement that could be received (whether in cash or property or the vesting of property) as a result of the Merger and the other transactions contemplated by this Agreement (alone or in combination with Lawsany other event, including any termination of employment on or following the Closing) by any person who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) with respect to the Company would be characterized as an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code). No person is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any tax imposed under Section 4999 or 409A of the Code.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Red Hat Inc), Merger Agreement (International Business Machines Corp)
Employee Benefits Matters. (i) Section 3.10(a3.01(m)(i) of the Company Disclosure Schedule Letter sets forth a complete and accurate listcorrect list of all “employee welfare benefit plans” (as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), all “employee pension benefit plans” (as defined in Section 3(2) of ERISA) (each, a “Pension Plan”) and all other Benefit Plans and Benefit Agreements that, in each case, are in effect as of the date of this Agreement. The Company has delivered or made available to Parent complete and correct copies of (A) each Benefit Plan and each Benefit Agreement (or, in the case of any unwritten Benefit Plans or Benefit Agreements, written descriptions thereof), including any amendments thereto, (B) the two most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Entity, if any, with respect to each Benefit Plan (including reports filed on Form 5500 with accompanying schedules and attachments), (C) the most recent summary plan description (if any), and any summary of material modifications, prepared for each Benefit Plan for which a summary plan description is required under applicable Law, (D) each trust agreement and group annuity or insurance Contract and other documents relating to the funding or payment of compensation or benefits under each Benefit Plan and Benefit Agreement (if any) and (E) the two most recent actuarial valuations for each Benefit Plan (if any). Each Benefit Plan and Benefit Agreement has been administered, funded and invested in all material respects in accordance with its terms. The Company and its Subsidiaries and each Benefit Plan and Benefit Agreement are in compliance in all material respects with applicable Law, including ERISA and the Code, and the terms of any collective bargaining agreements or other labor union Contracts.
(ii) Each Pension Plan intended to be tax qualified under the Code is so qualified and has been the subject of a favorable determination, qualification or opinion letter from the U.S. Internal Revenue Service (the “IRS”) with respect to all tax Law changes with respect to which the IRS is currently willing to provide a determination letter to the effect that such Pension Plan is qualified and exempt from U.S. federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such letter has been revoked (nor, as of the date of this Agreement, has revocation been threatened) and no event has occurred since the date of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement letter or application therefor relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company such Pension Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in adversely affect the qualification of such Pension Plan or increase the costs relating thereto or require security under Section 3(3) 307 of ERISA. Each Benefit Plan required to have been approved by any non-United States Governmental Entity (or permitted to have been approved to obtain any beneficial tax or other status) that are intended to be tax qualified under Section 401(a) has been so approved or timely submitted for approval, no such approval has been revoked (nor, as of the Code (eachdate of this Agreement, a “Company Pension Plan”has revocation been threatened) have received a favorable determination letter from and no event has occurred since the IRS date of the most recent approval or has filed a timely application therefor and, relating to the Knowledge of the Company, any such Company Pension Plan qualifies in all material respects under Section 401(a) of that would reasonably be expected to affect any such approval relating thereto or increase the Code in operationcosts relating thereto. The Company has delivered or made available to Parent a complete and correct and complete copy of the most recent determination determination, qualification, opinion or approval letter or similar document received from a Governmental Entity with respect to each Company Pension PlanBenefit Plan intended to qualify for favorable tax treatment or other status, as well as a complete and correct and complete copy of each pending application for a determination letterdetermination, qualification, opinion or approval letter or similar document, if any. Except , and a complete and correct list of all amendments to any such Benefit Plans as set forth on Section 3.10(bto which a favorable determination, qualification, opinion or approval letter has not yet been received.
(iii) of the Company Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsorsCommonly Controlled Entity has sponsored, maintains maintained, contributed to or contributes been obligated to maintain or contribute to, nor or has any actual or contingent liability with respect tounder, any Benefit Plan that is a multiemployer plan “defined benefit plan” (as defined in Section 3(373(35) of ERISA) or a plan “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA), or that is subject to section Section 302 or Title IV of ERISA or section Section 412 of the Code. With Code or that is otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, and neither the Company nor any Commonly Controlled Entity could incur any liability with respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate any such plan (under Sections 4041 Title IV of ERISA or 4042 of ERISA; otherwise).
(iiiv) there has been no No Benefit Plan or Benefit Agreement that provides welfare benefits, whether or not subject to ERISA (each, a “reportable eventWelfare Plan”), is funded through a “welfare benefits fund” (as such term is defined in Section 4043(b419(e) of ERISA) for which a reporting waiver does not apply the Code), or is unfunded or self-insured. There are no understandings, agreements or undertakings, written or oral, that would reasonably be expected prevent any Welfare Plan (including any Welfare Plan covering retirees or other former employees) from being amended or terminated without material liability to have a the Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment of its Subsidiaries at or at any time after the Effective Time. No Welfare Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except where the cost thereof is borne entirely by the former employee (or his or her eligible dependents or beneficiaries) or as required under by Section 412 4980B(f) of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for any similar state statute or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effectforeign Law. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the The Company and its Subsidiaries have reserved complied in all material respects with the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on applicable requirements of Section 3.10(c4980B(f) of the Company Disclosure ScheduleCode, Sections 601-609 of ERISA and any similar state statute or foreign Law with respect to each Benefit Plan that is a “group health plan” (as defined in Section 5000(b)(1) of the Code or any similar state statute).
(v) None of the execution and delivery of this Agreement, the obtaining of the Stockholder Approval or the consummation of the Transactions will not, either Merger or any other transaction contemplated by this Agreement (whether alone or in combination with another eventas a result of any termination of employment on or following the Effective Time) will, except as expressly provided in contemplated by this Agreement, (iA) entitle any employee of the Company Personnel to severance payseverance, unemployment termination, retention, change in control or similar compensation or any other paymentbenefits, or (iiB) accelerate the time of payment or vesting, or trigger any payment or funding (through a grantor trust or otherwise) of, compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to any Benefit Plan or Benefit Agreement or (C) result in any breach or violation of, or a default under, any Benefit Plan or Benefit Agreement.
(vi) No deduction of compensation due any amount payable pursuant to the terms of the Benefit Plans or Benefit Agreements has been disallowed or is subject to disallowance under Section 162(m) of the Code.
(vii) All reports, returns and similar documents with respect to each Benefit Plan required to be filed with any Governmental Entity or distributed to any Benefit Plan participant have been duly and timely filed or distributed. Neither the Company nor any of its Subsidiaries has received notice of any, and, to the knowledge of the Company, there are no, pending investigations by any Governmental Entity with respect to, or pending termination proceedings or other material claims (except claims for benefits payable in the normal operation of the Benefit Plans and Benefit Agreements), suits or proceedings against or involving or asserting any rights or claims to benefits under, any Benefit Plan or Benefit Agreement.
(viii) All contributions, premiums and benefit payments under or in connection with each Benefit Plan and Benefit Agreement that are required to have been made by the Company or any of its Subsidiaries in accordance with the terms of such employee Benefit Plan and Benefit Agreement and applicable Laws have been timely made. Neither the Company nor any of its Subsidiaries has incurred, or officer. would reasonably be expected to incur, any unfunded liabilities in relation to any Benefit Plan or Benefit Agreement.
(ix) With respect to each Benefit Plan, (A) there has not occurred any prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) that could subject the Company or any of its Subsidiaries or any of their respective directors or employees to any material liability and (B) neither the Company nor any of its Subsidiaries nor any of their respective directors, employees or agents has engaged in any transaction or acted in a manner, or failed to act in a manner, that could reasonably be expected to subject the Company or any of its Subsidiaries or any of their respective directors or employees to any material liability for breach of fiduciary duty under ERISA or any other applicable Law.
(x) Neither the Company nor any of its Subsidiaries has any liability or obligation, including under or on account of a Benefit Plan or Benefit Agreement, arising out of the hiring of persons to provide services to the Company or any of its Subsidiaries and treating such persons as consultants or independent contractors and not as employees of the Company or any of its Subsidiaries.
(xi) Except as set forth would not reasonably be expected to have any liability in excess of $10,000, any Benefit Plan that is subject to the laws of any jurisdiction outside the United States (all such Contracts, collectively, “Foreign Benefit Plans”) required to have been approved by any foreign Governmental Entity has been so approved, no such approval has been revoked nor, to the knowledge of the Company, has revocation been threatened, and no event has occurred since the date of the most recent approval with respect to such Foreign Benefit Plan that would reasonably be expected to affect such approval or status. None of the Company and its Subsidiaries nor any Commonly Controlled Entity has obligations under any Benefit Plan to provide health or other welfare benefits to retirees or former employees for which the Company or any of its Subsidiaries reasonably would be expected to have any liability in excess of $10,000.
(i) With respect to each Foreign Benefit Plan of the Company or any of its Subsidiaries that is a defined benefit retirement plan, to the extent the liabilities of the Companies and any of its Subsidiaries with respect to such plan exceed the related assets of the Company and such Subsidiaries with respect to such plan, such that the Company or any of its Subsidiaries could have any material liability with respect to the underfunding of such plan, either (A) the excess of such liabilities over such assets with respect to such plan has been properly accrued on the consolidated balance sheet of the Company and its consolidated Subsidiaries in accordance with GAAP, (B) such liability of the Company or any of its Subsidiaries has been disclosed in Section 3.10(d3.01(m)(xii) of the Company Disclosure Schedule, no amounts payable under Letter or (C) Parent or Sub has been provided the most recent actuarial valuation report with respect to such plan; and (ii) the Company Plans will fail and its Subsidiaries have complied in all material respects with all applicable Laws as they pertain to statutory plans applicable to the Company and any of its Subsidiaries.
(xiii) No amount, economic benefit or other entitlement that could be deductible for federal income tax purposes received (whether in cash or property or the vesting of property) as a result of the Merger and the other transactions contemplated by virtue this Agreement (alone or in combination with any other event, including any termination of section 280G employment on or following the Closing) by any person who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) with respect to the Company would be characterized as an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code). This Section 3.10 constitutes the sole and exclusive representation and warranty 3.01(m)(xiii) of the Company regarding pension Letter sets forth (A) the Company’s reasonable, good-faith estimate of the maximum amount that could be paid to each such “disqualified individual” as a result of the Merger and employee benefit liabilitiesthe other transactions contemplated by this Agreement (alone or in combination with any other event, obligationsincluding any termination of employment on or following the Closing) and (B) the “base amount” (as such term is defined in Section 280G(b)(3) of the Code) for each such “disqualified individual”, in each case calculated as of the date of this Agreement. No person is entitled to any gross-up, make-whole or compliance with Lawsother additional payment from the Company or any of its Subsidiaries in respect of any tax (including U.S. federal, state, local and foreign income, excise and other taxes (including taxes imposed under Section 4999 or 409A of the Code)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (Qualcomm Inc/De), Merger Agreement (Atheros Communications Inc)
Employee Benefits Matters. Section 3.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof)Plan, (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) the most recent actuarial reports and financial statements for each Company Plan, if applicable, and (e) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice Plans that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. There has been no non-exempt prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) or breach of fiduciary duty under Section 404 of ERISA with respect to any Company Plan, other than as would not reasonably be expected to have a Company Material Adverse Effect. All required material contributions to all Company Plans (including all minimum required contributions under Sections 412 and 430 of the Code with respect to any Company Plan set forth on Section 3.10(a) of the Company Disclosure Schedule) have been made. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, no condition exists that could reasonably be expected to result in the loss of any such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationplan’s qualified status. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as and a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or or, except as set forth on Section 3.10(a) of the Company Disclosure Schedule, a plan subject to section Section 302 or Title IV of ERISA or section Section 412 of the Code. With respect to each any plan set forth on Section 3.10(a) of the Company Disclosure Schedule, the Pension Plan Benefit Guaranty Corporation (the “PBGC”) has not instituted proceedings to terminate any such plan (and, to the Knowledge of the Company, no condition exists that could reasonably be expected to result in such proceedings being instituted) and the Company and its ERISA Affiliates do not have any material liability to the PBGC with respect to such plan other than premium payments required by ERISA. Other than as set forth on Section 3.10(b) of the Company Disclosure Schedule, (ino Company Plan provides for post-employment health or life insurance benefits, other than as required by COBRA or other applicable Laws. With respect to any plan set forth on Section 3.10(b) no proceeding of the Company Disclosure Schedule, to the Knowledge of the Company, the Company has been initiated the right to amend or terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for its discretion without the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension consent of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefitsparticipant. Except as set forth on Section 3.10(c) of the Company Disclosure ScheduleSchedule or as otherwise required by this Agreement, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation pay or any other payment, payment or (ii) accelerate the time of payment or vesting, vesting or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no No amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, or liabilities or obligations, or compliance with Laws, relating thereto.
Appears in 2 contracts
Samples: Merger Agreement (Dominion Resources Inc /Va/), Merger Agreement (Questar Corp)
Employee Benefits Matters. (a) Section 3.10(a3.14(a) of the Company Disclosure Schedule sets forth contains a complete list of all Benefit Plans and accurate listall material Benefit Agreements, including each "employee welfare benefit plan" (as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) and "employee pension benefit plan" (as defined in Section 3(2) of the date of this Agreement, of each material Company ERISA) (a "Pension Plan"). The Company has made available provided to Parent true, complete and correct and complete copies of (ai) the current plan document for each Benefit Plan and each material Company Plan Benefit Agreement (or, if such Company Plan is not in writingthe case of any unwritten Benefit Plans or Benefit Agreements, a written description of the material terms descriptions thereof), (bii) the two most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Benefit Plan (if any such report was requiredincluding reports filed on Form 5500), (ciii) the most recent summary plan description prepared for each material Company Plan for which such summary plan description is requiredBenefit Plan, (div) each trust agreement and group annuity contract relating to any Company Plan, Benefit Plan and (ev) the most recent audited financial statement determination or qualification letter issued by any Governmental Entity for each Benefit Plan intended to qualify for favorable tax treatment. Each Benefit Plan has been administered in accordance with its terms. The Company and its Subsidiaries have caused the Benefit Plans and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is administration thereof to be in compliance in all material respects with its terms and the all applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if anyApplicable Laws. Except as set forth on in Section 3.10(b3.14(a) of the Company Disclosure Schedule, neither all Pension Plans intended to be tax-qualified have been the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan subject of determination letters from the Internal Revenue Service (as defined in Section 3(37"IRS") of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company effect that such Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan Plans are qualified and exempt from United States Federal income taxes under Sections 4041 or 4042 of ERISA; (ii401(a) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 and 501(a), respectively, of the Code or Section 303 have remaining a period of ERISA time under applicable Treasury regulations or IRS pronouncements in which to apply for such a letter and make any amendments necessary to obtain such a favorable determination as to the qualified status of each such Pension Plan; no such determination letter has been made before revoked (or, to the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) knowledge of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other paymentof its Subsidiaries, has revocation been threatened or otherwise communicated or considered by the IRS); no event occurred relating to any such Pension Plan that would adversely affect the qualification of such Pension Plan (iior, if such event has occurred, that could not be corrected by means of self-correction) accelerate the time of payment or vesting, or materially increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Lawscosts relating thereto.
Appears in 2 contracts
Samples: Merger Agreement (Westwood Corp/Nv/), Merger Agreement (L 3 Communications Corp)
Employee Benefits Matters. (a) Section 3.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (ai) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof)Plan, (bii) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (ciii) the most recent summary plan description for each material Company Plan for which such summary plan description is required, required and (div) each trust agreement relating to any Company Plan. Except as would not reasonably be expected to have a Company Material Adverse Effect, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each each Company Plan has been maintained and is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse EffectLaws. There are no Claims pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination or opinion letter from the IRS or has filed a timely application therefor andtherefor, to or is in the Knowledge form of a pre-approved document that is the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) subject of a favorable opinion letter from the Code in operationIRS. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b.
(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on that is subject to Title IV or Section 3.10(b) 302 of ERISA or Section 412 or 4971 of the Company Disclosure ScheduleCode, (i) the Company, its Subsidiaries and their respective ERISA Affiliates have complied with the minimum funding requirements under Section 412, 430 and 431 of the Code and Sections 302, 303 and 304 of ERISA, whether or not waived, (ii) no proceeding reportable event within the meaning of Section 4043 of ERISA for which the 30-day notice requirement has not been waived has occurred, (iii) all premiums required to be paid to the PBGC under 4007 of ERISA have been timely paid, (iv) no liability under Section 4062 through 4071 of ERISA has been initiated or is expected to be incurred by the Company, its Subsidiaries or any of their respective ERISA Affiliates (other than for premiums to the PBGC) and (v) proceedings to terminate any such plan Company Pension Plan have not been instituted under Sections 4041 or 4042 of ERISA; ERISA except, in each case of clauses (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except i)—(v), as would not reasonably be expected to have a Company Material Adverse Effect; .
(vc) Section 3.10(c) of the Company Disclosure Schedule lists each Multiemployer Plan. Neither the Company, nor any of its ERISA Affiliates: (i) has incurred a withdrawal (either complete or partial) (as defined in Section 4203 or 4205 of ERISA) from any Multiemployer Plan, or (ii) has incurred a decline in contributions to any Multiemployer Plan such that, if the current rate of contributions continues, a seventy-percent decline in contributions (as defined in Section 4205 of ERISA) will occur within the next three plan years except, in each case of clauses (i) or (ii), as would not be reasonably expected to have a Company Material Adverse Effect. To the Knowledge of the Company, (A) no such plan event has applied for occurred or received a waiver of circumstance exists that constitutes the minimum funding standards termination or an extension insolvency of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations Multiemployer Plan (within the meaning meanings of Section 436 ERISA Sections 4041A and 4245, respectively) and (B) no Multiemployer Plan is a party to any pending merger or asset or liability transfer or is subject to any Claim brought by the PBGC, except, in each case of the Codeclauses (A) currently in effect. Other than and (B), as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. .
(d) Except as set forth on in Section 3.10(c3.10(d) of the Company Disclosure ScheduleSchedule or as otherwise required by this Agreement, the consummation of the Transactions will notalone, either alone or in combination with another eventevent (including any termination of employment before, on or following the Effective Time) will not, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation pay or any other payment, termination payment or benefit or (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation or benefits due to, any such employee or officer. employee.
(e) Except as set forth on in Section 3.10(d3.10(e) of the Company Disclosure Schedule, no amounts payable under the Company Plans will are reasonably expected to fail to be deductible for federal income tax purposes by virtue of section Section 280G of the Code. Section 3.10(e) of the Company Disclosure Schedule lists the directors, officers, employees and service providers entitled to a gross-up, or make whole or other payment as a result of the imposition of taxes under Section 280G, Section 4999 or Section 409A of the Code pursuant to any agreement or arrangement with the Company or any of its Subsidiaries.
(f) This Section 3.10 constitutes and Section 3.16 (to the extent related to pensions and employee benefits) constitute the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, or liabilities or obligations, or compliance with LawsLaws relating thereto.
Appears in 2 contracts
Employee Benefits Matters. Section 3.10(a(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (ai) the current plan document for each material Company Plan (or, if such and with respect to any non-written material Company Plan is not in writingPlan, a written description of the material terms thereof), (bii) the most recent annual reports on Form 5500 for the last three completed fiscal years required to be filed with the Department of Labor IRS with respect to each Company Plan and the most recent actuarial reports (if any such report was required), (ciii) the most recent summary plan description for each material Company Plan for which such summary plan description is required, and (div) each trust agreement and insurance or group annuity contract (or any other funding agreement) relating to any material Company Plan, .
(eb) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is has been administered in material compliance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan Plans or the assets of the trust under (and the Company has received no notice such plan that there is any threatened) audit would individually or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to aggregate have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination or opinion letter from the IRS or has filed a timely application therefor (and the Company is not aware of any reason why any such determination letter or opinion letter should be revoked or not be reissued). and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code, and, to the Knowledge knowledge of the Company, such nothing has occurred with respect to the Company Pension Plan qualifies in all Plans which could be reasonably expected to cause the loss of such qualification or exemption or the imposition of any material respects liability, penalty or tax under Section 401(a) of ERISA or the Code in operationCode. The Company has made available to Parent a correct and complete copy of the most recent determination or opinion letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b.
(c) of the Company Disclosure Schedule, neither Neither the Company nor any trade or business, whether or not incorporated, that together with the Company would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA Affiliate sponsors(including any entity that during the past six (6) years was a Subsidiary of the Company) (any such entity, maintains the Company’s “ERISA Affiliate”) has now or contributes at any time within the previous six (6) years contributed to, nor has any liability with respect tosponsored, or maintained a multiemployer plan Multiemployer Plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable eventmultiple employer plan” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 413(c) of the Code) currently in effector equivalent under any non-United States Law. Other than as would not reasonably be expected to have a Company Material Adverse Effect, No material liability under Title IV or Section 302 of ERISA has been incurred by the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) any ERISA Affiliate of the Company Disclosure Scheduleto which the Company or any Subsidiary of the Company would be liable for on or after the Closing, that has not been satisfied in full, and no condition exists that presents a material risk to the Company or any ERISA Affiliate of the Company of incurring any such liability, other than liability for premiums due the Pension Benefit Guaranty Corporation (which premiums have been paid when due). No Company Plan that is subject to Title IV (a “Title IV Plan”) or any trust established thereunder has failed to satisfy the “minimum funding standards” (as defined in Section 302 of ERISA and Section 412 of the Code). The consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, payment or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 4.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, or liabilities or obligations, or compliance with Laws, relating thereto.
(d) Each Company Plan that is subject to Section 409A of the Code is in material compliance with, and has been operated and administered in compliance with, Section 409A of the Code, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Minerals Technologies Inc), Merger Agreement (Amcol International Corp)
Employee Benefits Matters. (i) Section 3.10(a3.01(m)(i) of the Company Disclosure Schedule sets forth contains a complete list of all Benefit Plans and accurate listall material Benefit Agreements, including without limitation each "employee welfare benefit plan" (as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended "ERISA")) and "employee pension benefit plan" (as defined in Section 3(2) of the date of this Agreement, of each material Company ERISA) (a "Pension Plan"). The Company has made available provided to Parent true, complete and correct and complete copies of (a1) the current plan document for each Benefit Plan and each material Company Plan Benefit Agreement (or, if such Company Plan is not in writingthe case of any unwritten Benefit Plans or Benefit Agreements, a written description of the material terms descriptions thereof), (b2) the two most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Benefit Plan (if any such report was requiredincluding reports filed on Form 5500), (c3) the most recent summary plan description prepared for each material Company Plan for which such summary plan description is requiredBenefit Plan, (d4) each trust agreement and group annuity contract relating to any Company Plan, Benefit Plan and (e5) the most recent audited financial statement and the actuarial determination or other valuation report prepared qualification letter issued by any Government Entity for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Planeach Benefit Plan intended to qualify for favorable tax treatment. Each Company Benefit Plan is has been administered in compliance accordance with its terms and the applicable provisions of ERISA, the Code and all other applicable lawsterms, except where such noncompliance would the failure so to be administered individually or in the aggregate could not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of material adverse effect on the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of its subsidiaries and all the most recent determination letter received Benefit Plans are in compliance with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) all applicable provisions of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of , the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) , and all other applicable laws, whether Federal, state or local, domestic or foreign, except for instances of possible noncompliance that individually or in the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would aggregate could not reasonably be expected to have a Company Material Adverse Effect; (vmaterial adverse effect on the Company. All Pension Plans intended to be tax-qualified have been the subject of determination letters from the IRS to the effect that such Pension Plans are qualified and exempt from United States Federal income taxes under Sections 401(a) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 and 501(a), respectively, of the Code or Sections 302 have remaining a period of time under applicable Treasury regulations or 303 IRS pronouncements in which to apply for such a letter and make any amendments necessary to obtain such a favorable determination as to the qualified status of ERISA that is currently in effecteach such Pension Plan; and no such determination letter has been revoked (vi) there are no funding-based benefit limitations (within or, to the meaning of Section 436 knowledge of the Code) currently Company, has revocation been threatened); in effect. Other than as would the event any Pension Plan has not reasonably be expected to have applied for such a Company Material Adverse Effectdetermination letter, the Company is in the process of preparing an application for such determination letter and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, is not aware of any reason why such determination letter would not be issued by the consummation IRS; no event occurred relating to any such Pension Plan that would adversely affect the qualification of the Transactions will not, either alone such Pension Plan or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or materially increase the amount costs relating thereto or require security under Section 307 of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with LawsERISA.
Appears in 2 contracts
Samples: Merger Agreement (International Business Machines Corp), Merger Agreement (Crossworlds Software Inc)
Employee Benefits Matters. (a) Section 3.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as correct list of the date of this Agreement, of each all material Company PlanPlans (the “Disclosed Company Plans”). The Company has made available to Parent Parent, to the extent applicable, current, correct and complete copies of (ai) each Disclosed Company Plan, (ii) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the three most recent annual reports on Form 5500 required to be filed with the Department of Labor IRS with respect to each Company Plan (if any such report was required), (ciii) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredrequired (together with any summary of material modifications, if applicable), (div) each trust agreement and insurance or group annuity contract relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (fv) all material documents and written correspondence relating to each Company Plan received from or provided to the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any material and non-routine correspondence with a other Governmental Authority regarding any pending auditsince January 1, investigation, claim or dispute under any Company Plan. 2012.
(b) Each Company Plan is has been established, maintained, funded and administered in all material respects in compliance with its terms and in compliance in form and in operation with the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse EffectLaws. There are no pending or, to the Knowledge of the Company, threatened claims Actions (other than claims for benefits in the ordinary course) with respect to to, or any Liens filed against or with respect to, any Company Plans, nor is other than claims made in the ordinary course of business which are not, individually or in the aggregate, material. All contributions required to be made by the Company and its Subsidiaries have been timely made in compliance with applicable Law with respect to all Company Plans, and there are no material unfunded obligations of the Company or any of its Subsidiaries under any Company Plan under that are not accurately reflected in the Company’s financial statements and accrued in accordance with GAAP.
(and the Company has received no notice that there is any threatenedc) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans Plans, other than any “multiemployer plan” (as defined in Section 3(37) of ERISA) that are “employee pension benefit plans” (as defined in Section 3(33(2) of ERISA) that are intended to be tax Tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS on which the Company may currently rely, or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationtherefor. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. To the Knowledge of the Company, no fact exists or Event has occurred since the date of such letter or letters from the IRS that would reasonably be expected to result in the loss of the qualified status of any such Company Plan or the exempt status of any such trust.
(d) Except as set forth on Section 3.10(b3.10(d) of the Company Disclosure Schedule, neither the Company nor any trade or business, whether or not incorporated, that together with the Company would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA Affiliate sponsors(including any entity that during the past six (6) years was a Subsidiary of the Company) (each such entity, maintains an “ERISA Affiliate”) has now or contributes at any time within the previous six (6) years contributed to, nor has any liability with respect tosponsored, or maintained a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With The Company and each ERISA Affiliate have satisfied the minimum funding standards under Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. Neither the Company nor any ERISA Affiliate has incurred any withdrawal liability with respect to each a complete or partial withdrawal from any Company Pension Plan that is a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA). No Company Plan is a “multiple employer welfare arrangement” as such term is defined in Section 3(40)(A) of ERISA.
(e) Except as set forth on Section 3.10(b3.10(e) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 the execution and delivery of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; this Agreement and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another eventEvent, except as expressly provided in this Agreement, (i) entitle any employee current or former employee, officer, director or consultant of the Company to severance pay, unemployment compensation or any other paymentpayment from the Company or any of its Affiliates under any Company Plan, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation or otherwise enhance any benefit due any such employee, officer, director or consultant, or (iii) otherwise trigger any material obligations or penalties under, breach of or default (with or without notice or lapse of time, or both) under, any Company Plan (other than any “multiemployer plan” (as defined in Section 3(37) of ERISA)). Neither the Company nor any Subsidiary of the Company is in material breach of or material default under the terms of any Company Plan. To the Knowledge of the Company, no other party to any Company Plan is in material breach of or material default under the terms of any Company Plan.
(f) Neither the Company nor any of its Subsidiaries is a party to any Contract, arrangement or plan (including any Company Plan) that has resulted or would result, separately or in the aggregate, in connection with the Transactions (either alone or in combination with any other Events), in the payment of any “excess parachute payments” to any “disqualified individual”, in each case within the meaning of Section 280G of the Code. There is no Contract, plan or other arrangement to which the Company or any of its Subsidiaries is a party which provides for a gross-up in respect of taxes or other penalties imposed pursuant to Section 409A or 4999 of the Code.
(g) All premiums or other payments that are required to be paid have been timely paid with respect to each such Company Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or officernot such Company Plan is subject to ERISA) or are accurately accrued and reflected in the Company’s financial statements in accordance with GAAP. Except as set forth on Section 3.10(d3.10(g) of the Company Disclosure Schedule, no amounts payable under Company Plan provides health or welfare benefits (whether or not insured), with respect to current or former employees or directors of the Company Plans will fail to be deductible for federal income tax purposes or any of its Subsidiaries beyond their retirement or other termination of service, other than health continuation coverage as required by virtue of section 280G Section 4980B of the Code. This , the full cost of which is borne by the current or former employee or director.
(h) No fiduciary or party in interest of any Company Plan has participated in, engaged in or been a party to any transaction that is prohibited under Section 3.10 constitutes 4975 of the sole Code or Section 406 of ERISA and exclusive representation not exempt under Section 4975 of the Code or Section 408 of ERISA, respectively, or has otherwise acted or failed to act with respect to any Company Plan in a manner, in either case, that could reasonably be expected to subject the Company or any of its Subsidiaries to any material liability under ERISA or any other applicable Law.
(i) With respect to each Company Plan that is not subject exclusively to United States Law (a “Non-U.S. Benefit Plan”): (i) all employer and warranty employee contributions to each Non-U.S. Benefit Plan required by applicable Law or by the terms of such Non-U.S. Benefit Plan or pursuant to any other contractual obligation (including contributions to all mandatory provident fund schemes) have been timely made in accordance with applicable Law or accurately accrued and reflected on the Company’s financial statements in accordance with GAAP; (ii) from and after the Closing, such funds, accruals or reserves under the Non-U.S. Benefit Plans shall be used exclusively to satisfy benefit obligations accrued under such Non-U.S. Benefit Plans or else shall remain or revert to Parent and its Affiliates in accordance with the terms of such Non-U.S. Benefit Plan or applicable Law; and (iii) each Non-U.S. Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
(j) For each Company Plan which is a “group health plan” within the meaning of Section 5000(b)(1) of the Code, the Company has complied in all material respects with the notice and continuation coverage requirements of Section 4980B of the Code, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder.
(k) Neither the Company nor any of its ERISA Affiliates has any legally binding plan or commitment to create any additional Company Plans or modify or change any existing Company Plans that would affect any employee or terminated employee of the Company regarding pension and or any employee benefit liabilities, obligations, or compliance with Lawsterminated employee providing services to the Company.
Appears in 2 contracts
Samples: Merger Agreement (Horizon Lines, Inc.), Merger Agreement (Matson, Inc.)
Employee Benefits Matters. (a) If so directed by Parent, the Company Board, at least five (5) business days prior to the Effective Time, will adopt resolutions terminating any and all Plans intended to qualify as a qualified cash or deferred arrangement under Section 3.10(a401(k) of the Code, effective no later than the day immediately preceding the date the Company Disclosure Schedule sets forth becomes a complete and accurate list, as member of the date same controlled group of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” corporations (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a414(b) of the Code (each, a “Company Pension Plan”Code) have received a favorable determination letter from the IRS or has filed a timely application therefor and, as Parent. The form and substance of such resolutions shall be subject to the Knowledge reasonable approval of Parent, and the Company shall provide Parent evidence that such resolutions have been adopted by the Company Board or the board of directors of the CompanyCompany Subsidiaries, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationas applicable. The Company has made available shall take such other actions in furtherance of terminating any such 401(k) plans as Parent may reasonably request. Immediately prior to Parent a correct and complete copy such termination, the Company will make (or cause to be made) all necessary payments to fund the contributions (i) necessary or required to maintain the tax qualified status of the most recent determination letter received with respect to each Company Pension any such 401(k) Plan, as well as a correct (ii) for elective deferrals made pursuant to any such 401(k) Plan for the period prior to termination, and complete copy of each pending application (iii) for a determination letter, employer matching contributions (if any. Except as set forth on Section 3.10(b) required pursuant to such 401(k) Plan for the period prior to termination.
(b) Nothing in this Agreement shall (x) create any Third Party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company Disclosure Scheduleor any Company Subsidiary in any respect, neither the Company nor including in respect of continued employment (or resumed employment), or create any ERISA Affiliate sponsorssuch rights in any persons in respect of any benefits that may be provided, maintains directly or contributes toindirectly, nor has under any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Scheduleprior to the Effective Time), or (iy) no proceeding has been initiated constitute or be construed to constitute an amendment to any of the compensation or benefit plans maintained for or provided to employees or other persons prior to or following the Effective Time. Nothing in this Agreement shall constitute a limitation on the rights to amend, modify or terminate any such plan under Sections 4041 plans or 4042 arrangements of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment Parent or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; its subsidiaries (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of including any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) Plan of the Company Disclosure Scheduleprior to the Effective Time). Table of Contents
(c) The Company will consult with Parent (and consider in good faith the advice of Parent) prior to sending any material notices or other communication materials to its employees regarding the matters described in this Section 6.4, and any other matters relating to the consummation entry into of this Agreement or the effects of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, Merger.
(id) entitle any employee of Parent shall take the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as actions set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Lawsin Schedule 6.4(d).
Appears in 2 contracts
Employee Benefits Matters. (a) Section 3.10(a4.09(a) of the Company Disclosure Schedule Letter sets forth a true, correct and complete and accurate list, as of the date of this Agreement, list of each material Company Benefit Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for Buyer Parties with respect to each material Company Benefit Plan (orin each case to the extent applicable): (i) a copy of the plan document, if such Company Plan is not in writing, including all currently effective amendments thereto (or a detailed written description of the material terms thereofCompany Benefit Plan or any such amendment to the extent not reduced to writing), ; (bii) the most recent summary plan description and all currently effective summaries of material modifications; (iii) the most recent IRS determination, notification or opinion letter; (iv) each trust agreement, insurance contract, or other document relating to the funding or payment of benefits; and (v) the three most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) and the most recent summary plan description for each material Company Plan for which such summary plan description is requiredactuarial report, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and report.
(fb) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Benefit Plan is has been maintained, operated, and administered in material compliance with its terms and any related documents or agreements and in material compliance with all applicable Laws.
(c) Each Company Benefit Plan intended to be qualified under Section 401(a) of the applicable Code is so qualified and has been determined by the IRS to be so qualified, and each trust created thereunder has been determined by the IRS to be exempt from Tax under the provisions of ERISASection 501(a) of the Code, and nothing has occurred since the Code and all other applicable laws, except where date of any such noncompliance would not determination that could reasonably be expected to have a Company Material Adverse Effect. give the IRS grounds to revoke such determination.
(d) There are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened threatened, against or involving any Company Benefit Plan or asserting any rights to or claims for benefits under any Company Benefit Plan (other than routine claims for benefits in benefits). No non-exempt “prohibited transaction” (within the ordinary coursemeaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to any Company Plans, nor is any Company Plan under Benefit Plan.
(and the Company has received no notice that there is any threatenede) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsorscurrently has, maintains or contributes tohas ever had, nor has any liability with respect toan obligation to contribute to a “defined benefit plan” as defined in Section 3(35) of ERISA, a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code or a “multiemployer plan (plan” as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 Section 414(f) of the Code. With respect to each Company Pension Plan set forth on No material liability under Title IV or Section 3.10(b) 302 of ERISA has been incurred by the Company Disclosure Scheduleor any ERISA Affiliate that has not been satisfied in full, (i) and no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply condition exists that would could reasonably be expected to have present a material risk to the Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any ERISA Affiliate of incurring any such liability.
(f) No Company Benefit Plan provides for post-retirement or other payment post-employment welfare benefits (other than health care continuation coverage as required under by Section 412 4980B of the Code or Section 303 of ERISA has been made before similar state Law or coverage through the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver end of the minimum funding standards or an extension calendar month in which a termination of any amortization period within employment occurs).
(g) Neither the meaning execution of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, this Agreement nor the consummation of the Transactions will not, (either alone or in combination with another event, except as expressly provided in this Agreement, a result of termination of employment or service)
(i) entitle any current or former employee, director, independent contractor, consultant or leased employee of the Company or any Company Subsidiary to severance pay, unemployment any payment of compensation or any other payment, or benefits; (ii) accelerate the time of payment or vesting, or increase the amount of compensation or benefits due to any such employee individual; (iii) accelerate the vesting, funding or officer. Except as set forth on Section 3.10(dtime of payment of any compensation, equity award or other benefit; or (iv) result in the payment of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to any amount that would not be deductible for federal income tax purposes by virtue of section under Section 280G of the Code.
(h) Each Company Benefit Plan, and any award thereunder, that is subject to Sections 409A or 457A of the Code is in compliance with all applicable requirements of Sections 409A and 457A of the Code. This Section 3.10 constitutes Neither the sole and exclusive representation and warranty Company nor any Company Subsidiary has any obligation to gross-up, indemnify or otherwise reimburse any of their respective current or former employees, directors, independent contractors, consultants or leased employees for any Tax incurred by such individual, including under Sections 409A, 457A or 4999 of the Code, or any interest or penalty related thereto.
(i) Each Company Benefit Plan that is maintained outside of the United States primarily in respect of any current or former employees, directors, independent contractors, consultants or leased employees of the Company regarding pension and employee benefit liabilities, obligations, or any Company Subsidiary who are located outside of the United States (i) has been maintained in material compliance with its terms and applicable Laws, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
Appears in 2 contracts
Samples: Share and Asset Purchase Agreement (Home Loan Servicing Solutions, Ltd.), Share and Asset Purchase Agreement (New Residential Investment Corp.)
Employee Benefits Matters. (i) Section 3.10(a3.01(m)(i) of the Company Disclosure Schedule Letter sets forth a complete and accurate listcorrect list of all “employee welfare benefit plans” (as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), all “employee pension benefit plans” (as defined in Section 3(2) of ERISA) (each, a “Pension Plan”) and all other Benefit Plans and Benefit Agreements that, in each case, are in effect as of the date of this Agreement. The Company has made available to Parent complete and correct copies of (A) each Benefit Plan and each Benefit Agreement (or, in the case of any unwritten Benefit Plans or Benefit Agreements, written descriptions thereof), including any amendments thereto, (B) the two most recent annual reports, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Entity, if any, with respect to each Benefit Plan (including reports filed on Form 5500 with accompanying schedules and attachments), (C) the most recent summary plan description (if any), and any summary of material modifications, prepared for each Benefit Plan for which a summary plan description is required under applicable Law, (D) each trust agreement and group annuity or insurance Contract and other documents relating to the funding or payment of compensation or benefits under each Benefit Plan and Benefit Agreement (if any) and (E) the two most recent actuarial valuations for each Benefit Plan (if any). Each Benefit Plan and Benefit Agreement has been administered, funded and invested in all material respects in accordance with its terms. The Company and its Subsidiaries and each Benefit Plan and Benefit Agreement are in compliance in all material respects with applicable Law, including ERISA and the Code, and the terms of any collective bargaining agreements or other labor union Contracts.
(ii) Each Pension Plan intended to be tax qualified under the Code has been the subject of a favorable determination, qualification or opinion letter from the U.S. Internal Revenue Service (the “IRS”) with respect to all tax Law changes with respect to which the IRS is currently willing to provide a determination letter to the effect that such Pension Plan is qualified and exempt from United States Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such letter has been revoked (nor, as of the date of this Agreement, has revocation been threatened) and no event has occurred since the date of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 such letter or application therefor relating to any such Pension Plan that is reasonably likely to adversely affect the qualification of such Pension Plan or materially increase the costs relating thereto or require security under Section 307 of ERISA. Each Benefit Plan required to be filed with have been approved by any non-United States Governmental Entity (or permitted to have been approved to obtain any beneficial tax or other status) has been so approved or timely submitted for approval, no such approval has been revoked (nor, as of the Department date of Labor with respect to each Company Plan (if any such report was required)this Agreement, (chas revocation been threatened) and no event has occurred since the date of the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement approval or application therefor relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of that is reasonably likely to affect any such approval relating thereto or increase the Code in operationcosts relating thereto. The Company has made available to Parent a complete and correct and complete copy of the most recent determination determination, qualification, opinion or approval letter or similar document received from a Governmental Entity with respect to each Company Pension PlanBenefit Plan intended to qualify for favorable tax treatment or other status, as well as a complete and correct and complete copy of each pending application for a determination letterdetermination, qualification, opinion or approval letter or similar document, if any. Except , and a complete and correct list of all amendments to any such Benefit Plans as set forth on Section 3.10(bto which a favorable determination, qualification, opinion or approval letter has not yet been received.
(iii) of the Company Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsorsCommonly Controlled Entity has sponsored, maintains maintained, contributed to or contributes been obligated to maintain or contribute to, nor or has any actual or contingent liability with respect tounder, any Benefit Plan that is a multiemployer plan “defined benefit plan” (as defined in Section 3(373(35) of ERISA) or a plan “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA), or that is subject to section Section 302 or Title IV of ERISA or section Section 412 of the Code or that is otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, other than any such plan that is sponsored by a Governmental Entity, and neither the Company nor any Commonly Controlled Entity could incur any liability with respect to any such plan (under Title IV of ERISA or otherwise).
(iv) No Benefit Plan or Benefit Agreement that provides welfare benefits, whether or not subject to ERISA (each, a “Welfare Plan”), is funded through a “welfare benefits fund” (as such term is defined in Section 419(e) of the Code), or is unfunded or self-insured. There are no understandings, agreements or undertakings, written or oral, that would prevent any Welfare Plan (including any Welfare Plan covering retirees or other former employees) from being amended or terminated without material liability to the Company or any of its Subsidiaries at or at any time after the Effective Time. No Welfare Plan provides benefits, and there are no understandings, written or oral, with respect to the provision of welfare benefits, after termination of employment, except where the cost thereof is borne entirely by the former employee (or his or her eligible dependents or beneficiaries) or as required by Section 4980B(f) of the Code or any similar state statute or foreign Law. The Company and its Subsidiaries have complied in all material respects with the applicable requirements of Section 4980B(f) of the Code, Sections 601-609 of ERISA and any similar state statute or foreign Law with respect to each Benefit Plan that is a “group health plan” (as defined in Section 5000(b)(1) of the Code or any similar state statute).
(v) Section 3.01(m)(v) of the Company Letter sets forth, as of the date of this Agreement, a complete and correct list of (A) each Benefit Plan and each Benefit Agreement pursuant to which any Company Personnel could become entitled to any additional compensation, severance or other benefits or any acceleration of the time of payment or vesting of any compensation, severance or other benefits as a result of the Merger and the other transactions contemplated by this Agreement (alone or in combination with any other event, including any termination of employment on or following the Closing), or any compensation or benefits the value of which would be calculated on the basis of the Merger and the other transactions contemplated by this Agreement (alone or in combination with any other event, including any termination of employment on or following the Closing), (B) the names of all Company Personnel entitled to any such compensation or benefits actually payable as of the Closing Date or upon termination of employment after the Closing Date, (C) the category or type of each such form of compensation or benefit to which such Company Personnel is entitled, (D) the aggregate value of each such form of compensation or benefit actually payable as of the Closing Date and each such form of compensation or benefit that would be payable upon termination of employment or otherwise after the Closing Date, in each case, to all Company Personnel, and (E) the aggregate value of any such compensation or benefits that would be paid to each individual set forth in Section 3.01(m)(v) of the Company Letter as of the Closing Date and upon termination of employment. Except as expressly set forth in Section 5.04, no Company Personnel will be entitled to any severance, separation, change in control, termination, bonus, retention or other additional compensation or benefits or any acceleration of the time of payment or vesting of any compensation or benefits as a result of the Merger and the other transactions contemplated by this Agreement (alone or in combination with any other event, including any termination of employment on or following the Closing) or any compensation or benefits related to or contingent upon, or the value of which will be calculated on the basis of, the Merger and the other transactions contemplated by this Agreement (alone or in combination with any other event, including any termination of employment on or following the Closing). The execution and delivery of this Agreement, the consummation of the Merger and the other transactions contemplated by this Agreement (alone or in combination with any other event, including any termination of employment on or following the Closing) and compliance by the Company with the provisions of this Agreement do not and will not (A) trigger any funding (through a grantor trust or otherwise) of, or increase the cost of, or give rise to any other obligation under, any Benefit Plan, Benefit Agreement or any other employment arrangement, (B) trigger the forgiveness of indebtedness owed by any Company Personnel to the Company or any of its Affiliates or (C) result in any violation or breach of, or a default (with or without notice or lapse of time or both) under, or limit to the Company’s or any of its Subsidiaries’ ability to amend, modify or terminate, any Benefit Plan or Benefit Agreement.
(vi) No deduction of any amount payable pursuant to the terms of the Benefit Plans or Benefit Agreements has been disallowed or is subject to disallowance under Section 162(m) of the Code.
(vii) All reports, returns and similar documents with respect to each Benefit Plan required to be filed with any Governmental Entity or distributed to any Benefit Plan participant have been duly and timely filed or distributed. All participant data necessary to administer each Benefit Plan and Benefit Agreement is in the possession of the Company or its Subsidiaries and is in a form that is sufficient for the proper administration of the Benefit Plans and Benefit Agreements in accordance with their terms and all applicable Laws and such data is complete and correct in all material respects. Neither the Company nor any of its Subsidiaries has received notice of any, and, to the knowledge of the Company, there are no, pending investigations by any Governmental Entity with respect to, or pending termination proceedings or other material claims (except claims for benefits payable in the normal operation of the Benefit Plans and Benefit Agreements), suits or proceedings against or involving or asserting any rights or claims to benefits under, any Benefit Plan or Benefit Agreement.
(viii) All material contributions, premiums and benefit payments under or in connection with each Benefit Plan and Benefit Agreement that are required to have been made by the Company or any of its Subsidiaries in accordance with the terms of such Benefit Plan and Benefit Agreement and applicable Laws have been timely made. No Benefit Plan, or any insurance Contract related thereto, requires or permits a retroactive increase in premiums or payments on termination of such Benefit Plan or such insurance Contract. Neither the Company nor any of its Subsidiaries has incurred, or could reasonably be expected to incur, any unfunded liabilities in relation to any Benefit Plan or Benefit Agreement.
(ix) With respect to each Company Pension Benefit Plan, (A) there has not occurred any prohibited transaction in which the Company, any of its Subsidiaries or any of their respective directors, officers or employees or, to the knowledge of the Company, any trustee, administrator or other fiduciary of such Benefit Plan set forth on Section 3.10(b) or trust created thereunder, in each case, who is not a director, officer or employee of the Company Disclosure Scheduleor any of its Subsidiaries (a “Non-Affiliate Plan Fiduciary”), has engaged that could subject the Company, any of its Subsidiaries or any of their respective directors, officers or employees or any Non-Affiliate Plan Fiduciary to the tax or penalty on prohibited transactions imposed by Section 4975 of the Code or the sanctions imposed under Title I of ERISA or any other applicable Law and (iB) no proceeding none of the Company, any of its Subsidiaries or any of their respective directors, officers or employees or, to the knowledge of the Company, any Non-Affiliate Plan Fiduciary, or any agent of any of the foregoing, has engaged in any transaction or acted in a manner, or failed to act in a manner, that could subject the Company, any of its Subsidiaries or any of their respective directors, officers or employees or any Non-Affiliate Plan Fiduciary to any material liability for breach of fiduciary duty under ERISA or any other applicable Law. No Benefit Plan or related trust has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) terminated, nor has there has been no any “reportable event” (as such term is defined in Section 4043(b) 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Benefit Plan during the last five years, and no notice of a reporting waiver does not apply that would reasonably reportable event will be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant be filed in connection with the Merger or the other transactions contemplated by this Agreement.
(x) Neither the Company nor any of its Subsidiaries has any liability or obligations, including under or on account of a Benefit Plan or Benefit Agreement, arising out of the hiring of persons to Section 4010 of ERISA for provide services to the current or most recently completed year; (iv) each required installment Company or any other payment required under Section 412 of its Subsidiaries and treating such persons as consultants or independent contractors and not as employees of the Code Company or Section 303 any of ERISA has been made before the applicable due date except as would not reasonably be expected to have its Subsidiaries.
(xi) Each Benefit Plan and each Benefit Agreement that is a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period “nonqualified deferred compensation plan” within the meaning of Treas. Reg. Section 412 1.409A-1(a)(1)(a) (a “Nonqualified Deferred Compensation Plan”) (A) was operated in compliance with Section 409A of the Code or Sections 302 or 303 between January 1, 2005 and December 31, 2008, based upon a good faith, reasonable interpretation of ERISA that is currently in effect; (1) Section 409A of the Code and (vi2) there are no funding-based benefit limitations the final Treasury Regulations and other guidance issued by the IRS thereunder, to the extent applicable (within the meaning of Section 436 of the Codeclauses (1) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effectand (2), together, the Company “409A Authorities”) and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c(B) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or has been operated in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Lawsthe 409A Authorities since January 1, 2009. Each Nonqualified Deferred Compensation Plan has been in documentary compliance with the 409A Authorities since January 1, 2009.
Appears in 2 contracts
Samples: Merger Agreement (International Business Machines Corp), Merger Agreement (Unica Corp)
Employee Benefits Matters. Section 3.10(a) 3.10 of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of lists each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof)Plan, (b) the most recent annual reports on Form 5500 required to be as filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, required and (d) each trust agreement and material insurance contract relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is has been maintained, funded and administered, in form and operation, in compliance in all material respects with its terms and with the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse EffectLaws. There are no pending or, to the Knowledge of the Company, threatened claims claims, suits, audits or investigations (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice Plans that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have result in a liability to the Company Material Adverse Effectand its Subsidiaries (taken as a whole) individually or in the aggregate in excess of $250,000. All Each Company Plans Plan that are is a “employee pension plansplan” (as defined in Section 3(33(2) of ERISA) and that are is intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received is covered by a current favorable determination letter from the IRS or has is the subject of a pending, timely filed a timely application therefor andtherefor, and no circumstance exists that would be reasonably expected to result in the Knowledge revocation of any such determination letter or the Company, refusal by the IRS to approve any such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationapplication. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate of its Subsidiaries maintains, sponsors, maintains contributes to or contributes to, nor has or would reasonably be expected to have any current or contingent liability or obligation (directly or indirectly) under or with respect to, to a multiemployer plan (as defined in Section 3(374001(a)(3) of ERISA) or a plan that is or was subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) 3.10 of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee current or former employee, officer, director or independent contractor of the Company or any of its Subsidiaries to severance pay, or a transaction or retention bonus, unemployment compensation or any other paymentpayment or additional compensation, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee employee, officer, director or officerindependent contractor. Except as set forth on Section 3.10(d) 3.10 of the Company Disclosure Schedule, no amounts Company Plan provides (or would reasonably be expected to require the Company or any of its Subsidiaries to provide) any post-employment health care coverage or, to the Knowledge of the Company, other welfare benefits except as specifically required by applicable Laws. No amount paid or which may become payable under the any Company Plans Plan or otherwise will fail to be deductible for federal income tax purposes by virtue of section Section 280G or Section 162(m) of the Code. This Neither the Company nor any of its Subsidiaries has or would be reasonably expected to have any indemnity obligation for any Taxes imposed under Section 4999 or 409A of the Code. No amounts that have been paid or that may become payable under any Company Plan would reasonably be expected to become subject to the interest and additional tax set forth under Section 409A(a)(1)(B) of the Code. Notwithstanding any other provisions of this Agreement, this Section 3.10 and Section 3.5 and Section 3.20 constitutes the sole and exclusive representation and warranty of the Company regarding relating to pension and employee benefit liabilities, or liabilities or obligations, or including compliance with LawsLaws relating thereto.
Appears in 2 contracts
Samples: Merger Agreement (Asset Acceptance Capital Corp), Merger Agreement (Encore Capital Group Inc)
Employee Benefits Matters. (a) Section 3.10(a3.13(a) of the Company Disclosure Schedule Schedules sets forth a complete and accurate listcorrect list of all Benefit Plans that are sponsored, maintained, contributed to or participated in by any Company Entity or with respect to which any Company Entity is a party or otherwise has any Liability, contingent or otherwise, including as the result of any ERISA Affiliate or any guaranty or indemnity (each a “Company Benefit Plan” and collectively the date of this Agreement, of each material “Company Plan. Benefit Plans”).
(b) The Company has Companies have made available to Parent the Buyer, to the extent applicable, complete and correct and complete copies of (ai) the current plan document for each material all Company Plan Benefit Plans (or, if such Company Plan is not in writing, or a written description summary of the material terms thereofthereof if the Company Benefit Plan has not been committed to writing), related trust agreements or other funding arrangements for all Company Benefit Plans, (bii) the most recent annual reports on Form 5500 required determination letter, ruling, opinion letter, information letter, or advisory opinion issued with respect to be any Company Benefit Plan by the IRS, the United States Department of Labor (“DOL”), the Department of Health and Human Services or the Pension Benefit Guaranty Corporation (“PBGC”) and any pending application for same, (iii) any filing or documentation (whether or not filed with the Department of Labor IRS) where corrective action was taken in connection with respect to each Company Plan (if or under any such report was required)IRS Employee Plans Compliance Resolution System or similar program for the current plan year and the three preceding plan years, (civ) annual reports or returns, audited or unaudited financial statements, actuarial reports, and valuations prepared for any Company Benefit Plan for the current plan year and the three preceding plan years, (v) the most recent summary plan description for each Company Benefit Plan and any material modifications thereto, (vi) IRS or DOL audits or inquiries or any similar investigation or inquiry of any Governmental Authority for the current plan year and the three preceding plan years and (vii) all material correspondence from or to the IRS, DOL or PBGC regarding any Company Benefit Plan for which received or sent during this calendar year or any of the preceding three (3) calendar years.
(c) All of the Company Benefit Plans (i) comply in form and operation in all material respects with all applicable requirements of Law and (ii) have been administered in compliance in all material respects with their terms and all applicable requirements of Law. All reports required to be filed with any Governmental Authority in connection with such summary plan description is required, Company Benefit Plans have been filed in accordance with all material requirements of Law.
(d) each trust agreement relating to any All Company PlanBenefit Plans that are employee pension benefit plans, (eas defined in Section 3(2) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, and that are intended to be qualified under Section 401(a) of the Code, are the subject of a favorable determination letter from the IRS (or can rely on an opinion or advisory letter obtained by a prototype or volume submitter plan sponsor) to the effect that such Company Benefit Plan is so qualified and that the Company Benefit Plan and related trust are exempt from federal Income Tax under Code Sections 401(a) and all other applicable laws501(a) respectively, except where such noncompliance and, to the Sellers’ Knowledge, no event has occurred or circumstances exist that would not reasonably be expected to adversely affect the qualification of any such Company Benefit Plan under Section 401(a) of the Code or the revocation of such favorable determination letter or the availability of reliance on such opinion or advisory letter. All benefits, contributions and premiums required by or due under the terms of each Company Benefit Plan or applicable Law have a been timely paid or remitted in accordance with the terms of each Company Material Adverse EffectBenefit Plan or applicable Law.
(e) There have not been any non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any of the Company Benefit Plans with respect to which any Company Entity would be liable for, or required to reimburse or indemnify any other Person for, any related taxes, interest or penalties.
(f) There are no actions, suits or claims pending or, to the Sellers’ Knowledge, threatened, with respect to or involving any Company Benefit Plan, other than routine claims for benefits and qualified domestic relations, medical or child support orders, and, to the Sellers’ Knowledge, there are no facts or circumstances that would reasonably be expected to result in any such actions, suits or claims. There are is no pending or, to the Knowledge of the CompanySellers’ Knowledge, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plansthreatened, nor is any Company Plan under (and the Company has received no notice that there is any threatened) inspection, investigation, audit or administrative proceeding by the IRS, the Department examination of Labor, or any other Governmental Authority with respect to or involving any Company Plan thatBenefit Plan, in each caseand, to the Sellers’ Knowledge, there are no facts or circumstances that would reasonably be expected to have result in any such inspection, investigation, audit or examination of any Governmental Authority which could reasonably be expected to result in any Liability to any Company Entity.
(g) No Company Entity nor any of its ERISA Affiliates has, or ever has had, any obligation or Liability in connection with (i) a Company Material Adverse Effect. All Company Plans that are “defined benefit plan” (as defined in Code Section 414(j)), (ii) any employee pension plans” benefit plan (as defined in Section 3(3) of ERISA) that are intended is or was subject to be tax qualified under Code Section 401(a412 or ERISA Section 302 or Title IV of ERISA, (iii) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section Sections 4001(a)(3) or 3(37) of ERISAERISA or Section 414(f) of the Code), (iv) any multiple employer welfare plan as defined in Section 3(40) of ERISA or a (v) any multiple employer plan subject to section 302 within the meaning of Sections 4063 or 4064 of ERISA or Code Section 413(c). No material Liability under Title IV of ERISA has been or section 412 is expected to be incurred by any Company Entity or any ERISA Affiliate thereof and, to the Sellers’ Knowledge, no event has occurred that could reasonably result in Liability under Title IV of the Code. With ERISA being incurred by any Company Entity or any ERISA Affiliate thereof with respect to each any ongoing, frozen, terminated, or other single-employer plan of any Company Pension Plan set forth on Section 3.10(b) Entity or the single-employer plan of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there any ERISA Affiliate. There has been no “reportable event,” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of ERISA Section 412 4043, for which the 30-day reporting requirement has not been waived by any ongoing, frozen, terminated or other single employer plan of any Company Entity or of an ERISA Affiliate.
(h) Except as required under Part 6 of ERISA, Code Section 4980B or similar state law, no Company Entity has any Liability or obligation for retiree or post-termination of employment or services welfare, health or life benefits under any of the Code Company Benefit Plans, or Sections 302 other plan or 303 of ERISA that is currently in effect; arrangement, and (vi) there are no fundingrestrictions on the ability of any Company Entity to unilaterally amend or terminate any and all such retiree or post-based benefit limitations termination of employment or services welfare, health or life benefits plan without incurring any Liability or obtaining any consent or waiver. No Tax under Code Sections 4980B or 5000 has been incurred with respect to any Company Benefit Plan or other plan or arrangement, and, to the Sellers’ Knowledge, no circumstance exists that could give rise to such Taxes.
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 436 409A of the Code) currently has been maintained in effect. Other than as would writing and operated in all material respects in full compliance with its terms and Section 409A of the Code and the guidance issued by the IRS with respect to such plans or is not reasonably be expected required to have a Company Material Adverse Effect, comply therewith due to its grandfathered or exempt status under Section 409A of the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Code.
(j) Except as set forth on in Section 3.10(c3.13(j) of the Company Disclosure ScheduleSchedules, neither the execution and delivery of this Agreement nor the consummation of the Transactions will nottransactions contemplated hereby, either alone or in combination with another eventany other events, except as expressly provided in this Agreement, will (i) entitle result in any employee of the Company to severance paypayment (including, unemployment compensation or any other paymentwithout limitation, severance, or unemployment compensation) becoming due to any manager, employee, director, independent contractor or consultant of any Company Entity (whether or not under any Company Benefit Plan); (ii) accelerate result in any increase in compensation or benefits or the time acceleration of vesting or payment under any Company Benefit Plan or vesting, otherwise (including any increase in or increase the amount funding of compensation due or benefits through a trust or otherwise); (iii) increase any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts benefits otherwise payable under any Company Benefit Plan, (iv) limit or restrict the ability of any Company Plans will fail Entity or the Buyer or its Affiliates to be deductible for federal income tax purposes by virtue merge, amend or terminate any Company Benefit Plan or (v) result in an “excess parachute payment” within the meaning of section 280G Section 280G(b) of the Code. This Section 3.10 constitutes No Company Entity is obligated to provide any gross-up, reimbursement or indemnity for any taxes, penalties or interest that might be incurred as the sole and exclusive representation and warranty result of Sections 280G, 409A or 4999 of the Code.
(k) Each service provider who is classified by any Company regarding pension Entity as an independent contractor or employee has been properly classified as such for purposes of participation in and employee benefit liabilities, obligations, or compliance with Lawsaccrual of benefits under any Company Benefit Plan and all other Tax purposes.
Appears in 2 contracts
Samples: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement
Employee Benefits Matters. (a) Section 3.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of of
(ai) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof)Plan, (bii) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (ciii) the most recent summary plan description for each material Company Plan for which such summary plan description is required, required and (div) each trust agreement relating to any Company Plan. Except as would not reasonably be expected to have a Company Material Adverse Effect, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each each Company Plan has been maintained and is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse EffectLaws. There are no Claims pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination or opinion letter from the IRS or has filed a timely application therefor andtherefor, to or is in the Knowledge form of a pre-approved document that is the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) subject of a favorable opinion letter from the Code in operationIRS. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b.
(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on that is subject to Title IV or Section 3.10(b) 302 of ERISA or Section 412 or 4971 of the Company Disclosure ScheduleCode, (i) no proceeding has been initiated to terminate such plan the Company, its Subsidiaries and their respective ERISA Affiliates have complied with the minimum funding requirements under Section 412, 430 and 431 of the Code and Sections 4041 or 4042 302, 303 and 304 of ERISA; , whether or not waived, (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period event within the meaning of Section 412 of the Code or Sections 302 or 303 4043 of ERISA that is currently in effect; and (vi) there are no fundingfor which the 30-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would day notice requirement has not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreementbeen waived has occurred, (iiii) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail all premiums required to be deductible for federal income tax purposes by virtue paid to the PBGC under 4007 of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Laws.ERISA have been timely paid,
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
Employee Benefits Matters. Section 3.10(a(a) of the The Company Disclosure Schedule sets forth a complete and accurate list, does not directly employ any individuals as of the date of this Agreement, of each material Company Plannor has it ever directly employed any individuals prior to such date. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description operations of the material terms thereof)Company prior to the date of this Agreement have been conducted by employees of Ascent Media Group, (b) the most recent annual reports on Form 5500 required to be filed LLC, with the Department of Labor costs associated with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, employment allocated to the Knowledge Company. Schedule 3.13(a) sets forth a list of the Companyall bonus, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plansdeferred or incentive compensation, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit profit sharing, retirement, vacation, sick leave, hospitalization or administrative proceeding by the IRSseverance plans, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension benefit plans” (as defined in Section 3(3) of ERISA) that are intended and material fringe benefit plans sponsored, maintained or contributed to be tax by Seller or its Affiliates for the benefit of the Company Employees, or in which any Company Employee participates or is entitled to participate or under which any Company Employee has any present or future right to benefits as of the Effective Date (the “Employee Benefit Plans”). Schedule 3.13(a) sets forth the bonus, commission, and/or incentive targets with respect to the 2008 Management Bonus Plan, 2008 Ad Sales Commissions Plan, Subscriber Recruiting Commission Plan and the Conversion Commission Plan together with the bonuses and commissions accrued with respect to such plans as of June 30, 2008, and a true and complete copy of each such plan is attached to Schedule 3.13(a). With respect to each Employee Benefit Plan, Seller or its Affiliates have made available to Buyer a true and correct copy of: (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service (“IRS”); (ii) the documents governing such Employee Benefit Plan; (iii) each trust agreement relating to such Employee Benefit Plan, if any; (iv) the most recent summary plan description for such Employee Benefit Plan, if such a summary plan description is required; (v) the most recent actuarial report as included in the annual Form 5500, if any, relating to such Employee Benefit Plan; and (vi) the most recent determination letter, if any, issued by the IRS with respect to such Employee Benefit Plan qualified under Section 401(a) of the Code Code.
(each, a “Company Pension Plan”b) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge Each of the Company, such Company Pension Plan qualifies Employee Benefit Plans is and has at all times been in compliance in all material respects with applicable provisions of ERISA and the Code. Except as otherwise set forth on Schedule 3.13(b), none of Seller or its Affiliates is a participating or contributing employer in any Multiemployer Plan with respect to the Company Employees, nor has Seller or its Affiliates incurred on behalf of any Company Employees any withdrawal liability with respect to any multiemployer plan or any liability in connection with the termination or reorganization of any Multiemployer Plan. Except as otherwise set forth on Schedule 3.13(b), all due contributions, premiums or payments under Section 401(a) or with respect to each Employee Benefit Plan on behalf of Company Employees are current and will have been paid as of the Code in operation. The Company Closing Date or accrued on the Closing Date Balance Sheet.
(c) Seller has made available to Parent a correct Buyer copies of all programs and complete copy policies of the most recent determination letter received Company with or relating to Company Employees.
(d) The Employee Benefit Plans that are intended to qualify under Section 401 of the Code are so qualified and the trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Code, and nothing has occurred with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) the operation of the Company Disclosure ScheduleEmployee Benefit Plans which could cause the loss of such qualification or exemption or the imposition of any material liability, neither penalty or tax under ERISA or the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan Code.
(as defined in Section 3(37e) of ERISA) or a plan No Employee Benefit Plan is subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 Title IV of ERISA has been made before ERISA.
(f) Except for payments relating to earned but unpaid wages, accrued but unused vacation and sick days and other payments arising in connection with the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver termination of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 employment of the Code or Sections 302 or 303 Company Employees with Ascent Media Group, LLC (all of ERISA that is currently in effect; which payments shall be the sole responsibility of Ascent Media Group, LLC) and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except except as set forth on Section 3.10(c) Schedule 3.13(f), neither the execution and delivery of this Agreement or the Company Disclosure Schedule, Transaction Documents nor the consummation of the Transactions transactions contemplated hereby or thereby will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle result in any employee of payment becoming due to any Company Employee, (ii) increase any compensation, benefits or funding to any Company Employee payable by the Company to severance pay, unemployment compensation or any other paymentCompany, or (iiiii) accelerate result in the acceleration of the time of payment or vesting, or increase the amount vesting of compensation due any such employee or officer. benefits.
(g) Except as set forth on Section 3.10(d) of in Schedule 3.13(g), the Company Disclosure Schedule, no amounts payable under the Company Plans will fail is not obligated to be deductible for federal income tax purposes by virtue make any Change of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, Control Payments pursuant to any Employee Benefit Plan or compliance with LawsContract.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a3.08(a) of the Company Alpha Disclosure Schedule sets forth contains a true, correct and complete and accurate list, as list of all ANR Plans in effect on the date hereof. Prior to the date of this Agreement, of each material Company Plan. The Company ANR has provided or made available to Parent Contura true, correct and complete copies as in effect on the date hereof of each of the following with respect to each such ANR Plan, as applicable: (ai) the current plan document for each material Company Plan (or agreement or, if such Company with respect to any ANR Plan that is not in writing, a written description of the material terms thereof), ; (bii) any summary plan description required to be furnished to participants pursuant to ERISA; (iii) the most recent annual reports on Form 5500 required report, actuarial report, financial report and/or communication to be filed with the U.S. Department of Labor or the Pension Benefits Guarantee Corporation, if any; (iv) all amendments or modifications to any such documents; (v) the most recent determination letter received from the Internal Revenue Service with respect to each Company ANR Plan that is intended to be a “qualified plan” under Section 401 of the Code; and (if any such report was required), (cvi) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredrequired Internal Revenue Service Form 5500, including all schedules thereto.
(db) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance Except as would not have or reasonably be expected to have a Company have, individually or in the aggregate, an Alpha Material Adverse Effect. There , with respect to each ANR Plan, (i) since July 26, 2016, all expenses, contributions, premiums or payments required to be made to, under or with respect to such ANR Plan have been timely made and all amounts properly accrued to date or as of the Closing as liabilities of any Alpha Party or any of their respective Subsidiaries which are no pending ornot yet due have been properly recorded on the books of the Alpha Parties and, to the Knowledge extent required by GAAP, adequate reserves are reflected on the financial statements of the CompanyAlpha Parties, threatened claims (other than claims for benefits in the ordinary courseii) with respect to any Company Planssince July 26, nor 2016, each such ANR Plan which is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are an “employee pension plansbenefit plan” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and intended to qualify under Section 401 of the Code (each, a “Company Pension Plan”) have has received a favorable determination letter from the IRS or has filed a timely application therefor Internal Revenue Service with respect to such qualification, and, to the Knowledge knowledge of any Alpha Party, nothing has occurred since the Companydate of such letter that has affected, or would reasonably be expected to adversely affect, such Company Pension qualification, (ii) since July 26, 2016, with respect to any ANR Plan qualifies maintained outside the United States, all applicable foreign qualifications or registration requirements have been satisfied, (iv) there are no Proceedings pending (other than routine claims for benefits) or, to the knowledge of any Alpha Party, threatened or anticipated with respect to such ANR Plan, any fiduciaries of such ANR Plan with respect to their duties to any ANR Plan, or against the assets of such ANR Plan or any trust maintained in connection with such ANR Plan, (v) since July 26, 2016, such ANR Plan has been operated and administered in compliance in all material respects under Section 401(awith its terms and all applicable Laws and regulations, including ERISA and the Code, and (vi) there is not now, and to the knowledge of any Alpha Party there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the Code in operation. The Company has made available to Parent a correct and complete copy posting of the most recent determination letter received security with respect to each Company a ANR Plan or the imposition of any pledge, lien, security interest or encumbrance on the assets of any Alpha Party or any of their respective Subsidiaries or any of their respective ERISA Affiliates under ERISA, the Pension PlanProtection Act or the Code, as well as a correct and complete copy or similar Laws of each pending application for a determination letterforeign jurisdictions.
(c) No Alpha Party or any of their respective Subsidiaries or any of their ERISA Affiliates, if any. Except as set forth on (i) has, since July 26, 2016, sponsored, maintained or contributed to, or has ever had any obligation to contribute to, (ii) any “employee benefit plan” within the meaning of Section 3.10(b3(3) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have (iii) a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period “multiemployer plan” within the meaning of Section 412 3(37) and 4001(a)(3) of ERISA or a “multiple employer plan” within the meaning of Sections 4063/4064 of ERISA or Section 413(c) of the Code Code, or Sections 302 (iv) has, since July 26, 2016, incurred or 303 reasonably expects to incur any direct or indirect liability pursuant to Title IV of ERISA (including any Controlled Group Liability).
(d) To the knowledge of any Alpha Party, no ANR Plan is under audit or is the subject of an investigation, in each case by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or threatened.
(e) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise), (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of any Alpha Party or any of their respective Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, or (iv) result in any amount failing to be deductible by reason of Section 280G of the Code.
(f) To the knowledge of any Alpha Party, all ANR Stock Options and ANR RSUs have been granted in compliance with the terms of the applicable ANR Plans, with applicable Law, and with the applicable provisions of the Alpha Certificate of Incorporation or the Alpha Bylaws as in effect at the applicable time.
(g) Each ANR Plan that is currently in effect; and (vi) there are no funding-based benefit limitations (a “nonqualified deferred compensation plan” within the meaning of Section 436 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code) currently , has been operated in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effectcompliance in all material respects with applicable Law, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on including Section 3.10(c) 409A of the Company Disclosure ScheduleCode.
(h) No Alpha Party has any obligation to gross-up, the consummation indemnify or otherwise reimburse any current or former employee, consultant, director or individual independent contractor of any Alpha Party (each, an “Alpha Service Provider”) for any Tax incurred by such individual, including under Section 280G, 409A or 4999 of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, Code.
(i) entitle No Alpha Party has any employee of the Company current or projected liability for, and no ANR Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to severance payany Alpha Service Provider (other than coverage mandated by applicable Law, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Lawsincluding COBRA).
Appears in 1 contract
Employee Benefits Matters. Section 3.10(a(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Laws.Company
Appears in 1 contract
Samples: Merger Agreement
Employee Benefits Matters. Section 3.10(a(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (ai) the current plan document for each material Company Plan (or, if such Company Plan is not in writingunwritten, a written description of the material terms summary thereof), and all amendments thereto, (bii) the most recent annual reports on Form 5500 required to be filed with the Department of Labor IRS with respect to each material Company Plan (if any such report was required), (ciii) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredrequired and (iv) where applicable, (d) each trust agreement and insurance or group annuity contract relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any each material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. The Company shall provide a list of each material Company Plan within thirty (30) days after the date of the Agreement.
(b) Each Company Plan is and each related trust agreement and insurance or group annuity contract has been administered in compliance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable lawsLaws, and the Company and each of its Subsidiaries is in compliance, and since January 1, 2018 has complied, with ERISA, the Code and all other Laws applicable to any compensation and benefit plans, programs, agreements and arrangements, including the Company Plans, in each case, except where such noncompliance would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. .
(i) There are no current, pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course), disputes, complaints or investigations by or on behalf of any participant in any of the Company Plans, or otherwise involving any Company Plan or the assets of any Company Plan and (ii) no audit or other proceeding by any Governmental Authority is pending, or to the Knowledge of the Company, threatened with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. .
(d) All Company Plans that are “employee pension benefit plans” (as defined in Section 3(33(2) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination or prototype opinion letter from the IRS or the Company has filed a timely application therefor and, to the Knowledge of the Company, no circumstances exist that are likely to adversely impact the qualification of any such Company Pension Plan qualifies in all material respects plan under Section 401(a) of the Code in operationCode. The Company has made available to Parent a correct and complete copy of the most recent determination or prototype opinion letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b.
(e) None of the Company Disclosure ScheduleCompany, neither the Company nor any of its Subsidiaries or any of their respective ERISA Affiliate Affiliates contributes to, sponsors, maintains or contributes to, nor has any liability with respect to, a or within the last six years, has contributed to, sponsored, maintained or has had any liability with respect to, any “multiemployer plan plan” (as defined in Section 3(37) of ERISA) or (a “Multiemployer Plan”), any plan that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations “multiple employer plan” (within the meaning of Section 436 4063 of ERISA or 4064 of ERISA).
(f) None of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for material post-termination health, medical health or other welfare benefits. Except benefits except as set forth on may be required by Section 3.10(c) 4980B of the Company Disclosure Schedule, Code and Section 601 of ERISA or any other applicable Law or at the sole expense of the participant or the participant’s beneficiary.
(g) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will notwill, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any current or former director, employee or individual consultant or independent contractor of the Company or any of its Subsidiaries to severance pay, unemployment compensation or any other paymentpayment or benefit, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) payable or level of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail benefits to be deductible for federal income tax purposes by virtue provided, or trigger any other material obligation under any Company Plan, (iii) result in any breach or violation of, default under or limit the Company’s right to amend, modify or terminate any Company Plan or (iv) result in any payment that would reasonably be expected to be considered an “excess parachute payment” within the meaning of section Section 280G of the Code. This Neither the Company nor any of its Subsidiaries has any indemnity, gross up or any other obligation to reimburse any individual for any Taxes imposed under Section 3.10 constitutes the sole and exclusive representation and warranty 4999 or 409A of the Company regarding pension and employee benefit liabilities, obligations, Code or compliance with similar Laws.
Appears in 1 contract
Samples: Merger Agreement (GrubHub Inc.)
Employee Benefits Matters. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedule Letter sets forth a true, correct and complete and accurate list, as of the date of this Agreement, list of each material Company Benefit Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for with respect to each material Company Benefit Plan (orin each case to the extent applicable): (i) a copy of the plan document, if such Company Plan is not in writing, including all currently effective amendments thereto (or a detailed written description of the material terms thereofCompany Benefit Plan or any such amendment to the extent not reduced to writing), ; (bii) the most recent summary plan description and all currently effective summaries of material modifications; (iii) the most recent Internal Revenue Service determination, notification or opinion letter; (iv) each trust agreement, insurance contract, or other document relating to the funding or payment of benefits; and (v) the three most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) and the most recent summary plan description for each material Company Plan for which such summary plan description is requiredactuarial report, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and report.
(fb) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Benefit Plan is has been maintained, operated, and administered in material compliance with its terms and any related documents or agreements and in material compliance with all applicable Laws.
(c) Each Company Benefit Plan intended to be qualified under Section 401(a) of the applicable Code is so qualified and has been determined by the Internal Revenue Service (the “IRS”) to be so qualified, and each trust created thereunder has been determined by the IRS to be exempt from Tax under the provisions of ERISASection 501(a) of the Code, and nothing has occurred since the Code and all other applicable laws, except where date of any such noncompliance would not determination that could reasonably be expected to have a Company Material Adverse Effect. give the IRS grounds to revoke such determination.
(d) There are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened threatened, against or involving any Company Benefit Plan or asserting any rights to or claims for benefits under any Company Benefit Plan (other than routine claims for benefits in benefits). No non‑exempt “prohibited transaction” (within the ordinary coursemeaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to any Company Plans, nor is any Company Plan under Benefit Plan.
(and the Company has received no notice that there is any threatenede) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsorscurrently has, maintains or contributes tohas ever had, nor has any liability with respect toan obligation to contribute to a “defined benefit plan” as defined in Section 3(35) of ERISA, a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code or a “multiemployer plan (plan” as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 Section 414(f) of the Code. With respect to each Company Pension Plan set forth on No material liability under Title IV or Section 3.10(b) 302 of ERISA has been incurred by the Company Disclosure Scheduleor any ERISA Affiliate that has not been satisfied in full, (i) and no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply condition exists that would could reasonably be expected to have present a material risk to the Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 ERISA Affiliate of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due incurring any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Lawsliability.
Appears in 1 contract
Samples: Merger Agreement (Home Loan Servicing Solutions, Ltd.)
Employee Benefits Matters. (a) Section 3.10(a) of the Company Disclosure Schedule sets forth a true and complete and accurate list, as of the date of this Agreement, of each material Company Plan. The With respect to each material Company Plan, the Company has made available to Parent correct true and complete copies of of, as applicable, (ai) the Company Plan and any material amendments thereto, (ii) any related trust agreement, insurance contract or other funding vehicle, (iii) the current summary plan document for each description, summaries of material modifications, annual reports and summary annual reports with respect to Company Plan Plans, (oriv) the annual report most recently filed with any Governmental Authority (e.g., if such Company Plan is not in writing, a written description of the material terms thereofForm 5500 and all schedules thereto), (bv) the most recent annual reports on Form 5500 required to be filed with determination, advisory or opinion letter received from the Department of Labor IRS, (vi) with respect to each the Company Plan Pension Plan, the three (if 3) most recent actuarial reports and any such report was required)other material communications regarding funding status or costs thereof (including cost of any potential termination) in the past one (1) year, (cvii) all non-routine, written communications relating thereto (including any communications with any Governmental Authority) since the most recent summary plan description for each material Company Plan for which such summary plan description is requiredLookback Date, and (dviii) each all current trust agreement agreements and insurance contracts relating to any Company Plan, (e) the most recent audited financial statement and the actuarial funding or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute payment of benefits under any Company Plan. .
(b) Each Company Plan is has been established, maintained and administered in compliance all respects in accordance with its terms and the in all respects in compliance with applicable provisions of ERISA, the Code and all other applicable lawsLaw, except where such noncompliance as would not reasonably be expected to have be material to the Company and its Subsidiaries, taken as a Company Material Adverse Effect. whole.
(c) There are no pending orProceedings pending, or to the Knowledge Company’s Knowledge, threatened, against or with respect to any Company Plan, including any audit or inquiry by the IRS, United States Department of the Company, threatened claims Labor or other Governmental Authority (other than routine claims for benefits in the ordinary coursecourse of business) with respect to any Company Plansthat would, nor is any Company Plan under (and individually or in the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRSaggregate, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have be material to the Company and its Subsidiaries, taken as a Company Material Adverse Effect. All Company Plans that are “employee pension plans” whole.
(as defined in Section 3(3d) of ERISA) that are intended to be tax qualified under Section 401(a) of Other than the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsorsof its Subsidiaries has, maintains or contributes within the last six years preceding the date of this Agreement, sponsored, maintained, contributed to, nor or was required to contribute to or has any liability with respect toto (including on account of any of their ERISA Affiliates) any (i) “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) that is subject to Title IV of ERISA or Section 412 of the Code, a including any “multiemployer plan plan” (as defined in within the meaning of Section 3(37) of ERISA), (ii) or a plan subject to section 302 or Title IV “multiple employer plan” (within the meaning of ERISA or section 412 Section 413(c) of the Code) or (iii) “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA). With respect to each the Company Pension Plan Plan, (A) there is no (and there is not reasonably expected to be any) failure to meet the minimum funding standard as set forth on in Section 3.10(b) 412 of the Company Disclosure ScheduleCode or Section 303 of ERISA, (iB) no proceeding waiver of the minimum funding standards or extension of any amortization period of Section 412 of the Code or Section 302 or 303 of ERISA has been initiated requested (or is reasonably be expected to terminate be requested) from, or granted by, the Internal Revenue Service, (C) no Lien in favor of such plan under Sections 4041 has arisen (or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; arise) under Sections 412(n) or 430(k) of the Code or Sections 303(k) or 4068 of ERISA, (iiiD) no there has not been (and prior to the Closing, and except for the Transactions, will not be) any “reportable event”, within the meaning of Section 4043 of ERISA, (E) such plan has not been required to file information pursuant to Section 4010 of ERISA ERISA, (F) no event or circumstance has occurred that is reasonably expected to result in the incurrence by Parent or any of its Subsidiaries of any liability with respect thereto, and (G) neither the Company nor any Subsidiary has incurred any liability to the Pension Benefit Guaranty Corporation, other than for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; premiums, and (vi) there are no funding-based such premium payments which have become due which are unpaid. None of the Company nor its ERISA Affiliate has engaged in or agreed to engage in any transaction described in Section 4069 or 4212(c) of ERISA with respect to the Company Pension Plan.
(e) Each Company Plan that is an “employee pension benefit limitations plan” (within the meaning of Section 436 3(2) of ERISA) intended to be qualified under Section 401(a) of the CodeCode has received a favorable IRS determination, advisory or opinion letter as to its qualification and each trust established in connection with any such Company Plan which is intended to be exempt from federal income taxation under Section 501(a) currently in effectof the Code is so exempt. Other than as To the Company’s Knowledge no event has occurred or circumstance exists that would not reasonably be expected to have result in the loss of the tax-qualified status of any such Company Plan or the tax-exempt status of a Company Material Adverse Effect, related trust. Neither the Company and nor its Subsidiaries have reserved has engaged in, and to the right and power to terminateCompany’s Knowledge, suspendno third party has engaged in, discontinue and amend all Company Plans that provide for post-termination health, medical any prohibited transaction (within the meaning of Section 406 of ERISA or other welfare benefits. Except as set forth on Section 3.10(c) 4975 of the Code), other than a transaction that is exempt under a statutory or administrative exemption, with respect to any Company Disclosure SchedulePlan.
(f) Neither the execution of this Agreement, nor the consummation of the Transactions will not, either (alone or in combination conjunction with another event, except as expressly provided any other event (where such other event would not alone have an effect described in this Agreementsentence), including any termination of employment on or following the Closing), would reasonably be expected to (i) entitle any current or former officer, director, employee or consultant of the Company to severance pay, unemployment compensation or any other paymentof its Subsidiaries to any change in control, transaction bonus or retention payment or, (ii) accelerate the time of payment payment, funding or vestingvesting of any amounts due, or materially increase the amount of compensation due payable, to any such current or former officer, director, employee or officer. Except as set forth on Section 3.10(d) individual consultant of the Company Disclosure Scheduleor any of its Subsidiaries under any Company Plan.
(g) Neither the execution of this Agreement, no amounts payable under nor the Company Plans will fail consummation of the Transactions (alone or in conjunction with any other event, including any termination of employment on or following the Closing), would reasonably be expected to be deductible for federal income tax purposes result in the receipt or retention by virtue any person who is a “disqualified individual” (within the meaning of section Section 280G of the Code) of any payment or benefit that is a “parachute payment” (within the meaning of Section 280G of the Code). This Section 3.10 constitutes the sole and exclusive representation and warranty No current or former officer, director, employee or consultant of the Company regarding pension or any of its Subsidiaries is entitled to receive any gross-up or additional payment in connection with the Tax required by Section 409A or Section 4999 of the Code.
(h) No Company Plan provides post-employment medical, disability or life insurance benefits to any former director, employee or their respective dependents (other than as required by health care continuation coverage as required by Section 4980B of the Code or any similar state law or ERISA or coverage through the end of the calendar month in which a termination of employment occurs.
(i) Each Company Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and employee benefit liabilitiesmaintained in operational and documentary compliance in all material respects with Section 409A of the Code and all IRS guidance promulgated thereunder, obligations, or compliance to the extent such section and such guidance have been applicable to such Company Plan.
(j) Each holder of an award of Restricted Shares have made timely and valid election under Section 83(b) of the Code with Lawsrespect to such award.
Appears in 1 contract
Samples: Transaction Agreement (Vistra Corp.)
Employee Benefits Matters. Section 3.10(a(a) Schedule 4.18(a) of the Company Disclosure Schedule Schedules sets forth a correct and complete and accurate listlist of all material Benefit Plans maintained, sponsored or contributed to by Sellers or their Subsidiaries as of the date of this Agreement, of each material Company Plan. The Company has Agreement Date.
(b) Sellers have provided or made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (orBuyer, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan Assumed Benefit Plan, the following, to the extent applicable to such Benefit Plan: (i) a copy of the three (3) most recent Form 5500 annual reports including all schedules and attachments to such report (if any such report was requiredrequired under ERISA), (cii) a copy of the most recent summary plan description for each (if required under ERISA), together with a summary of material Company Plan for which such summary plan description is requiredmodifications required under ERISA, (diii) each trust agreement relating to any Company Plana true and complete copy of the written plan document and all amendments thereto, (eiv) a copy of all applicable nondiscrimination testing results under the most recent audited financial statement and the actuarial or other valuation report prepared Code for the most recently completed plan year with respect thereto previous three (3) years and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary coursev) with respect to any Company Plans, nor each such plan that is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (eachor 413(c) of the Code, a “Company Pension Plan”) have received a favorable the most recent determination or opinion letter from issued by the IRS or has filed a timely application therefor and, Internal Revenue Service with respect to the Knowledge qualified status of the Companysuch plan.
(c) Except where such noncompliance would not have a Material Adverse Effect, such Company Pension each Assumed Benefit Plan qualifies has been operated and administered in all material respects in accordance with its terms and in compliance with all applicable Law, including ERISA and the Code. To Sellers’ Knowledge, no event or change has occurred with respect to any Assumed Benefit Plan that is intended to be qualified under Section 401(a) or 413(c) of the Code in operation. The that would reasonably be expected to cause the loss of such plan’s tax qualified status, or has subjected or would reasonably be expected to subject the Company has made available to Parent a correct material penalty under Section 502 of ERISA or to an excise tax under the Code.
(d) All required contributions (including all employer contributions and complete copy employee salary reduction contributions), premiums and other payments that have become due and owing as of the most recent determination letter received date hereof in respect of any current or former employee of the Company have been timely paid in accordance with respect to each Company Pension Assumed Benefit Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. .
(e) Except as set forth on Section 3.10(bin Schedule 1.1(e) of the Company Disclosure Schedule, neither no Assumed Benefit Plan is covered by Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, and the Company nor any and its ERISA Affiliate sponsorsAffiliates have not sponsored, maintains maintained or contributes contributed to such a plan within the six (6) years prior to the Closing Date. The Company and its ERISA Affiliates do not contribute to or have an obligation to contribute to, nor has and have not at any liability with respect time within six (6) years prior to the Closing Date contributed to or had an obligation to contribute to, a (i) any “multiemployer plan (plan” as defined in Section 3(37) of ERISA, (ii) or a “defined benefit plan” as defined in ERISA Section 3(35), (iii) a pension plan subject to section the funding standards of ERISA Section 302 or Code Section 412, (iv) a “multiple employer plan” within the meaning of ERISA Section 201(a) or Code Section 413(c), (v) a multiple employer welfare arrangement within the meaning of ERISA Section 3(40), or (vi) a VEBA under Code Section 501(c)(9).
(f) No Seller nor any other “disqualified person” or “party in interest” as defined in Code Section 4975 and Section 3(14) of ERISA, respectively, has engaged in any “prohibited transaction,” as defined in Code Section 4975 or Section 406 of ERISA, with respect to any Assumed Benefit Plan, nor, to Sellers’ Knowledge, has there been any fiduciary violations under ERISA that, in either case, could subject Sellers or their Subsidiaries to any material penalty or tax under Section 502 of ERISA or Code Section 4975. Neither Sellers nor, to Sellers’ Knowledge, any of their respective ERISA Affiliates has any material liability of any kind whatsoever, whether direct, indirect, contingent or otherwise, on account of (a) any violation of the health care requirements of Part 6 of Title I of ERISA or Section 4980B of the Code, (b) under Section 302 of ERISA or Section 412 of the Code or (c) under Title IV of ERISA ERISA.
(g) No actions, suits or section 412 of the Code. With claims or any audit or investigation by any governmental authority with respect to each Company Pension the assets of any ERISA Plan set forth on Section 3.10(b) of the Company Disclosure Scheduleor Assumed Benefit Plan are pending or, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply Sellers’ Knowledge, threatened, that would reasonably be expected to have a Company Material Adverse Effect; . There is no voluntary compliance submission through the IRS Employee Plans Compliance Resolution System or the DOL’s Voluntary Fiduciary Correction Program pending or in progress.
(iiih) There are no such Assumed Benefit Plans under which welfare benefits are provided to any current or former employees of Sellers or their Subsidiaries beyond their retirement or other termination of service, other than coverage mandated by Code Section 4980B, Subtitle B of Title I of ERISA or similar state group health plan continuation Laws, the cost of which is fully paid by the eligible participants or their dependents. As of the Agreement Date, there are no legal proceedings pending (other than routine claims for benefits) by or on behalf of any current or former employee of Sellers or, to Sellers’ Knowledge, threatened in writing against any of the Assumed Benefit Plans.
(i) Each Assumed Benefit Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA is and has been required to file information pursuant to Section 4010 in compliance, in all material respects, with each of the applicable requirements of ERISA and the Code, including Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA and with the Patient Protection and Affordable Care Act of 2010 (“PPACA”), and to Sellers’ Knowledge, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to result in a material liability for the current penalties or most recently completed year; (iv) each required installment excise Taxes under Code Section 4980D or 4980H or any other payment required provision of PPACA (including the requirement to timely file ACA information returns with the IRS or to provide applicable statements to employees under Section 412 6056 of the Code or 6055 as applicable). Each Assumed Benefit Plan that is a group health plan is in compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and the privacy and security laws governing protected health information under HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act, and any applicable state health care privacy and security laws or comparable laws, to the extent applicable.
(j) Each Assumed Benefit Plan that constitutes a nonqualified deferred compensation plan subject to Section 303 409A of ERISA the Code has been made before administered and operated in documentary and operational compliance in all material respects with the applicable due date except as would provisions of Section 409A of the Code and the Treasury Regulations thereunder. The Company does not reasonably have any “gross up” or indemnity obligation to any individual for taxes imposed under Code Section 4999 or 409A.
(k) The consummation of the transactions contemplated by this Agreement will not materially increase the amount of, or result in the acceleration of, the time of payment, funding or vesting of compensation or benefits under any Assumed Benefit Plan. There is no contract, agreement or Assumed Benefit Plan covering any current or former employee or director of the Company or any ERISA Affiliate, which individually or in the aggregate, could be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of give rise to the minimum funding standards or an extension payment of any amortization period within the meaning of amount which would constitute an “excess parachute payment” (as defined in Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Laws).
Appears in 1 contract
Employee Benefits Matters. (a) Set forth or listed on Schedule 3.14(a) is each "employee benefit plan," as defined in Section 3.10(a3(3) of ERISA and each other agreement, plan, program, fund, policy, contract or arrangement (whether written or unwritten) providing compensation, benefits, pension, retirement, superannuation, profit sharing, stock bonus, stock option, stock purchase, phantom or stock equivalent, bonus, incentive, deferred compensation, hospitalization, medical, dental, vision, vacation, life insurance, death benefit, sick pay, disability, severance, redundancy pay, educational assistance, housing assistance, moving expense reimbursement, fringe benefit or similar employee benefits in which current or former employees of any PED Subsidiary participate, or in which any PED Subsidiary is a participating employer or with respect to which any PED Subsidiary could incur liability under Section 4069, 4201, or 4212(c) of ERISA (collectively, the Company Disclosure Schedule sets forth "Benefit Plans"); provided, however, that any governmental plan or program requiring the mandatory payment of social insurance taxes or similar contributions to a complete and accurate listgovernmental fund with respect to the wages of an employee shall not be considered a "Benefit Plan" for these purposes. With respect to each Benefit Plan, as of the date of this Agreement, of each material Company Plan. The Company Seller has made available to Parent correct Buyer a true and complete copies copy of (a) the current plan document for each material Company Plan (orfollowing, if such Company Plan is not in writing, a written description of the material terms thereof), any: (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (ci) the most recent summary plan description for each material Company Benefit Plan for which such a summary plan description is required; (ii) such Benefit Plan, (d) and each trust agreement relating to any Company such Benefit Plan, ; (eiii) the 2005 annual report (Form 5500) for each Benefit Plan for which such report is required to be filed; (iv) the 2005 actuarial report for the C&D Technologies Salaried Pension Plan; (v) the most recent audited financial statement and determination letter issued by the actuarial or other valuation report prepared for the most recently completed plan year IRS with respect thereto to each Benefit Plan intended to qualify under Section 401(a) of the Code; (vi) as to each Benefit Plan that is in writing, the plan document and trust agreement, if any, as well as any summary plan description; and (fvii) a written description of any material and non-routine correspondence with a Governmental Authority regarding Benefit Plan that is not otherwise in writing.
(b) With respect to the Assumed Benefit Plans, except as contemplated by such Benefit Plans, to the knowledge of Seller, there exists no event or condition that has or shall subject any pending auditPED Subsidiary to any liability under the terms of such Assumed Benefit Plans, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all Code, or any other applicable lawsLaw that would have a Material Adverse Effect, except where other than contributions, benefits or liabilities contemplated by such noncompliance Assumed Benefit Plans. There does not now exist, nor do any circumstances exist that would not reasonably be expected to have a Company Material Adverse Effect. There are no pending orresult in, to the Knowledge any liability under (A) Title IV of ERISA, (B) Sections 302 or 406 of ERISA, or (C) Sections 412, 4971 or 4975 of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan thatCode, in each case, that would reasonably be expected a material liability of Buyer or the PED Subsidiaries following the Closing. Further, Seller and the ERISA Affiliates of Seller have complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code and with the provisions of Section 701 et seq. of ERISA and Subtitle K of the Code, to have a Company Material Adverse Effect. All Company Plans the extent subject to those provisions of ERISA and the Code.
(c) Except as set forth in Schedule 3.14(c), there is no Benefit Plan which is maintained or sponsored directly by any of the PED Subsidiaries which would be maintained, sponsored or assumed by, or transfer with, any of the PED Subsidiaries after Closing (whether by operation of Law or otherwise).
(d) Each Benefit Plan that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are is intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have has received a favorable determination or opinion letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects that it is qualified under Section section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy that its related trust is exempt from federal income Tax under section 501(a) of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if anyCode. Except as set forth on Section 3.10(b) of the Company Disclosure ScheduleSchedule 3.14(d), neither the Company nor any ERISA Affiliate sponsors, maintains no event has occurred or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply circumstance exists that would reasonably be expected to have a Company Material Adverse Effect; (iii) no give rise to disqualification or loss of Tax-exempt status of any such plan Benefit Plan or trust. Each Non-US Benefit Plan that is intended to qualify for tax-preferential treatment under applicable Law so qualifies and has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before received, where required, approval from the applicable due date except as Governmental Entity that it is so qualified and no event has occurred or circumstance exists that would not reasonably be expected to have a Company Material Adverse Effect; give rise to disqualification or loss of tax-preferential treatment.
(ve) no such plan has applied for or received a waiver of Except to the minimum funding standards or an extension of any amortization period within the meaning of extent required under Section 412 of the Code or Sections 302 or 303 601 et seq. of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 4980B of the Code) currently in effect. Other than as would not reasonably be expected , no Assumed Benefit Plan provides health or welfare benefits for any retired or former employee or is obligated to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power provide health or welfare benefits to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical any active employee following such employee's retirement or other welfare benefits. termination of service.
(f) Except as set forth on Section 3.10(c) of the Company Disclosure Scheduleotherwise contemplated by this Agreement, the consummation of the Transactions will transactions contemplated by this Agreement shall not, either alone or in combination with another eventand of themselves, except as expressly provided in this Agreementcause accelerated vesting, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vestingdelivery of, or increase the amount or value of compensation due any such payment or benefit under or in connection with any Benefit Plan or constitute a "deemed severance" or "deemed termination" under any Benefit Plan otherwise with respect to, any director, officer, employee, or former director, former officer or former employee of Seller or officerany PED Subsidiary which would be a liability of any PED Subsidiary or Buyer. Except No PED Subsidiary shall as set forth on Section 3.10(d) a result of the Company Disclosure Scheduleconsummation of the transactions contemplated by this Agreement become obligated to make, no amounts payable under the Company Plans will fail to any payments that could be deductible for federal income tax purposes nondeductible by virtue reason of section Section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty Code (without regard to subsection (b)(4) thereof), nor shall any PED Subsidiary be required to "gross up" or otherwise compensate any individual because of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Lawsimposition of any excise Tax on such a payment to the individual.
Appears in 1 contract
Employee Benefits Matters. Except as set forth in Section 3.10(a3.9 of the Company Disclosure Schedule:
(a) Section 3.9(a) of the Company Disclosure Schedule sets forth contains a complete list of all Company Benefit Plans and accurate list, as of the date of this Agreement, of each material all Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company PlanBenefit Agreements. Each Company Benefit Plan is and Company Benefit Agreement has been administered in material compliance with its terms and applicable Law and the terms of applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected collective bargaining agreements. All contributions required to have a been made by the Company Material Adverse Effectand the Company Subsidiaries under any Company Benefit Plan and Company Benefit Agreement have been timely made, or if not required to be made, have been properly accrued or reserved for in all respects. There are is no pending or, to the Knowledge of the Company, threatened claims material legal action, suit or claim relating to the Company Benefit Plans or Company Benefit Agreements (other than routine claims for benefits benefits). The Company has made available to Parent and Newco true, complete and correct copies of each Company Benefit Plan and Company Benefit Agreement (or, in the ordinary coursecase of any unwritten Company Benefit Plan and Company Benefit Agreement, a description thereof) and, to the extent applicable: (i) all trust agreements, insurance contracts or other funding arrangements, (ii) the two most recent actuarial and trust reports for both ERISA funding and financial statement purposes, (iii) the two most recent annual reports on Form 5500 filed with the Internal Revenue Service (the “IRS”) with respect to each Company Benefit Plan, (iv) the most recent IRS determination letter, (v) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required and any Company Planssummary of material modification thereto, nor is any Company Plan under (and the Company has vi) all communications received no notice that there is any threatened) audit from or administrative proceeding by sent to the IRS, the Pension Benefit Guaranty Corporation or the Department of Labor, (vii) the most recent actuarial study under any such Company Benefit Plan, (viii) all current employee handbooks and manuals, (ix) written statements regarding withdrawal or other multiemployer plan liabilities (or similar liabilities pertaining to any non-U.S. employee benefit plan under which the Company or any other Governmental Authority Company Subsidiary has obligations), (x) appraisals with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. Common Stock and (xi) discrimination tests.
(b) All Company Benefit Plans that are “employee pension benefit plans” (as defined in Section 3(33(2) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension PlanPlans”) have received a favorable been the subject of determination letter letters from the IRS or to the effect that such Company Pension Plans are qualified and exempt from Federal income Taxes under Sections 401(a) and 501(a), respectively, of the Internal Revenue Code of 1986, as amended (the “Code”), and no such determination letter has filed a timely application therefor andbeen revoked nor, to the Knowledge of the Company, has any revocation been threatened, nor has any such Company Pension Plan qualifies in all material respects under Section 401(a) been amended and no events have occurred since the date of the Code in operation. The Company has made available to Parent a correct and complete copy of the its most recent determination letter received with or application therefor in any respect that would affect its qualification or increase its costs. Each Company Benefit Plan that requires any approval under non-U.S. Law has been so approved and meets the conditions to each qualify for Tax-exempt status, if applicable, or for such other favorable classification available in respect of such Company Benefit Plan under applicable Law.
(c) No Company Pension Plan had, as of the last valuation date for such Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no an “reportable eventunfunded benefit liability” (as such term is defined in Section 4043(b4001(a)(18) of ERISA) for which ), based on actuarial assumptions that have been furnished to Newco. Neither the Company nor any Person who, with respect to the Company, would be treated as a reporting waiver does not apply single employer under Section 414 of the Code (an “ERISA Affiliate”), has incurred, and no event has occurred that would may reasonably be expected to have a cause the Company Material Adverse Effect; (iii) no such plan has been required or any ERISA Affiliate to file information pursuant to incur, any material liability under Section 4010 302 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code with respect to any benefit plan currently or formerly contributed to or maintained by any of them. None of the Company, its ERISA Affiliates, any officer of the Company or any Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Pension Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 303 4975 of the Code) or any other breach of fiduciary responsibility that would subject the Company, any Company Subsidiary or any officer of the Company or any Company Subsidiary to the Tax or penalty on prohibited transactions imposed by such Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. None of the Company Benefit Plans and trusts created thereunder has been terminated, nor has there been any “reportable event” (as that term is defined in Section 4043 of ERISA and for which the reporting requirements has not been made before waived by the applicable due Pension Benefit Guaranty Corporation) with respect to any Company Benefit Plan in the six years prior to the date except of this Agreement. Neither the Company nor any Company Subsidiary has incurred a “complete withdrawal” or a “partial withdrawal” (as would not reasonably be expected such terms are defined in Sections 4203 and 4205, respectively, of ERISA) with respect to have any plan that is a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period “multiemployer plan” within the meaning of Section 412 of the Code or Sections 302 or 303 4001(a)(3) of ERISA that is currently in effect; (a “Company Multiemployer Plan”) and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, neither the Company and its Subsidiaries have reserved nor any Company Subsidiary would incur any withdrawal liability if it were to completely or partially withdraw from the right and power to terminate, suspend, discontinue and amend all PACE Industry Union –Management Pension Fund or any other Company Plans that provide for post-termination health, medical Multiemployer Plan in which the Company or other welfare benefitsany Company Subsidiary currently participates. Except as set forth on Section 3.10(c3.9(c) of the Company Disclosure ScheduleSchedule provides a list of all Company Multiemployer Plans to which the Company may have any actual or contingent material liability.
(d) With respect to any Company Benefit Plan that is an employee welfare benefit plan, (i) no such Company Benefit Plan is unfunded or funded through a “welfare benefits fund” (as such term is defined in Section 419(e) of the Code), (ii) no such Company Benefit Plan provides benefits after termination of employment except as required by Section 4980B(f) of the Code and (iii) each such Company Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without material liability to the Company and any Company Subsidiary on or at any time after the Effective Time other than liabilities for benefits accrued as of the date of amendment or termination.
(e) The execution and delivery by the Company of this Agreement and/or the consummation of the Transactions will notMerger and the other Transactions, either alone or in combination together with another eventany other transactions or events, except as expressly provided in this Agreement, will not (i) entitle any employee current or former employee, officer, director or consultant of or other independent contractor to the Company or any Company Subsidiary to severance pay, unemployment compensation pay or any other change in control payment, or (ii) accelerate the time of payment or vestingvesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or Company Benefit Agreement or otherwise, (iii) result in any payment or deemed payment that will constitute an “excess parachute payment” for purposes of compensation due Sections 280G or 4999 of the Code, (iv) trigger the forgiveness of Indebtedness owed by any such employee to the Company or any Company Subsidiary or (v) result in any breach or violation of, or a default under, any Company Benefit Plan, Company Benefit Agreement or applicable Law.
(f) Since January 1, 2005 and through the date of this Agreement, neither the Company nor any Company Subsidiary has received notice of, and there are no (i) material pending or, to the Knowledge of the Company, threatened termination proceedings or other suits, claims (except claims for benefits payable in the normal operation of the Company Benefit Plans), actions or proceedings against or involving or asserting any rights or claims to benefits under any Company Benefit Plan or Company Benefit Agreement or (ii) pending investigations (other than routine inquiries) by any Governmental Entity with respect to any Company Benefit Plan or Company Benefit Agreement or with respect to any current or former employee or officerindependent contractor to the Company or any Company Subsidiary.
(g) Neither the Company nor any Company Subsidiary has, or may be reasonably expected to have, any liability or obligations, including under or on account of a Company Benefit Plan or Company Benefit Agreement, arising out of the hiring of Persons to provide services to the Company or any Company Subsidiary and treating such Persons as consultants or independent contractors and not as employees of the Company or any Company Subsidiary. Except The Company and each Company Subsidiary has at all times properly withheld and paid over to the IRS all applicable employment Taxes and other required payments. The Company and each Company Subsidiary has complied with all Laws related to employment of labor, including but not limited to provisions of such Laws relating to wages, hours, equal opportunity, collective bargaining and the payment of social security and other Taxes.
(h) Each Company Benefit Plan or Company Benefit Agreement which is a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) that the Company or any Company Subsidiary is a party to is either not subject to or has been operated and administered in good faith compliance with Section 409A of the Code and the applicable IRS guidance thereunder. The execution and delivery of this Agreement and completion of any Transactions will not cause any payments by the Company or any Company Subsidiary to become subject to, or to fail to comply with, Section 409A of the Code and the applicable IRS guidance thereunder.
(i) The Blue Ridge Holding Corp. Employee Stock Ownership Plan (“ESOP”) has received a favorable determination letter from the IRS with respect to its qualification as set forth on an “employee stock ownership plan” within the meaning of Section 3.10(d4975(e)(7) of the Company Disclosure Schedule, Code and no amounts payable under event has occurred since the Company Plans will fail to be deductible for federal income tax purposes by virtue date of section 280G such determination letter that could adversely affect the qualified status of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with LawsESOP.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a3.13(a) of the Company Disclosure Schedule sets forth a complete and accurate listlists, as of the date of this Agreementhereof, of each material Company Plan. For purposes of this Agreement, “Company Plan” means any “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and any other compensation or benefit plan, scheme, policy, program or agreement, whether or not covered by ERISA, that provides any incentive compensation, equity-based compensation, severance, employment, change in control, fringe benefit, welfare, pension, retirement, perquisite, bonus, retention or deferred compensation, whether domestic or foreign, that is entered into, sponsored, maintained or contributed to by the Company or any of its Subsidiaries for the benefit of any current or former employee of the Company or any of its Subsidiaries.
(b) The Company has made available to Parent Parent, to the extent applicable, correct and complete copies of (ai) the current plan document for each material Company Plan Plan, including any amendment thereto (or, if such in the case of any Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department and applicable forms of Labor with respect to each Company Plan (if award agreements and any such report was required)related trust documents, insurance contracts or other funding vehicles, (cii) the most recent summary plan description for each material Company Plan for which such a summary plan description is requiredrequired by applicable Law, (diii) the most recent actuarial report, (iv) the most recent report filed on Form 5500 (and all schedules and financial statements attached thereto), (v) the most recent determination or opinion letter received from the Internal Revenue Service (“IRS”) with respect to each trust agreement relating Company Plan intended to be tax-qualified under Section 401(a) of the Code, and (vi) all material non-routine correspondence to or from any Governmental Entity sent or received in the last three years with respect to any Company Plan, .
(ec) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is has been established, operated and administered in material compliance with its terms and with the applicable provisions of ERISA, the Code and all other applicable lawsLaws, except where such noncompliance would not reasonably and all contributions required to be expected to made under the terms of any Company Plans have a Company Material Adverse Effectbeen timely made. There are no pending or, to the Knowledge of the Company, threatened material claims (other than claims for benefits in the ordinary course) ), audits, actions or proceedings with respect to any Company Plans, nor is any .
(d) Each Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under within the meaning of Section 401(a) of the Code (each, a “Company Pension Plan”) have has received a favorable determination letter or is the subject of a favorable opinion letter from the IRS or has filed a timely application therefor on the form of such Company Plan on which the Company can rely and, to the Knowledge of the Company, nothing has occurred, whether by action or failure to act, that would reasonably be expected to adversely affect the qualified status of any such Company Pension Plan.
(e) No Company Plan qualifies in all material respects under Section 401(a) is subject to Title IV of the Code in operation. The Company has made available to Parent a correct ERISA, and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any of its ERISA Affiliate sponsors, maintains Affiliates contributes to or contributes is obligated to contribute to, nor has any liability with respect or within the six (6) years preceding the date hereof contributed to, a or was obligated to contribute to, any employee benefit plan that is subject to Title IV of ERISA, any multiemployer pension plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(f) Neither the Company nor any of its Subsidiaries has incurred any current or Title IV of ERISA projected material liability in respect of, and no Company Plan provides, post-employment or section 412 post-retirement health, medical or life insurance benefits, except as required under Section 4980B of the Code. With respect to each .
(g) Each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations a “nonqualified deferred compensation plan” (within the meaning of Section 436 409A of the Code) currently is in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effectdocumentary compliance with, the Company and its Subsidiaries have reserved the right has been operated and power to terminateadministered in material compliance with, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) 409A of the Company Disclosure Schedule, Code and the guidance issued by the Internal Revenue Service provided thereunder.
(h) Neither the execution of this Agreement nor the consummation of the Transactions will not, either transactions contemplated by this Agreement (whether alone or in combination connection with another eventany other event(s)), except as expressly provided in this Agreement, could (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vestingvesting of any payment or benefit under any Company Plan, (ii) result in any material payment or material funding (through a grantor trust or otherwise) of compensation or benefits under any Company Plan, (iii) materially increase the amount payable, or result in any other material obligation, pursuant to any Company Plan, (iv) limit or restrict the right to materially amend, terminate or transfer the assets of compensation due any such employee Company Plan on or officer. Except as set forth on following the Effective Time, or (v) result in any “excess parachute payment” within the meaning of Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This .
(i) Neither the Company nor any Subsidiary has any obligation to provide, and no Company Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional Taxes, interest or penalties incurred pursuant to Section 3.10 constitutes 409A or Section 4999 of the sole and exclusive representation and warranty Code or due to the failure of any payment to be deductible under Section 280G of the Code.
(j) No Company Plan is maintained outside the jurisdiction of the United States or covers any employees of the Company regarding pension and employee benefit liabilities, obligations, who reside or compliance with Lawswork outside of the United States.
Appears in 1 contract
Employee Benefits Matters. Section 3.10(a(a) Except as set forth in the Disclosure Schedules or for actions in compliance with Clause 6.1.6, the execution, delivery and performance of this Agreement will not accelerate the time of payment, vesting or funding of, or increase the amount of, compensation due or potentially due to any current or former officers, directors or employee or result in any other change in any obligation under any Employment Agreement or Employee Benefit Plan.
(b) The Seller has made available a copy of all Employment Agreements (with certain numbers redacted) for directors and officers of the Company Disclosure Schedule sets forth a complete and accurate list, as Employee Benefit Plans of the date of this Agreement, of each material Company PlanCompany. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description Each of the Company and its Subsidiaries has timely made all material terms thereof)payments due under, and recorded on its books all amounts properly accrued in respect of, all Employment Agreements and Employee Benefit Plans.
(bc) the most recent annual reports on Form 5500 required to be filed All such Employment Agreements and Employee Benefit Plans comply in all material respects with the Department of Labor all applicable Laws. There are no Proceedings pending with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Employment Agreement or Benefit Plan, (e) except for such Proceedings which, individually or in the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending auditaggregate, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would could not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims .
(other than claims for benefits in the ordinary coursed) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of in the Company Disclosure ScheduleSchedules, neither the Company nor any ERISA Affiliate sponsorsof its Subsidiaries provides, maintains or contributes toand has not agreed to provide, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information material employee benefits other than pursuant to Section 4010 of ERISA for the current Employment Agreements or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; Employee Benefit Plans, and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently obligations or commitments in effect. Other than as force which would not reasonably be expected to have a Company Material Adverse Effect, bind the Company and its Subsidiaries have reserved the right and power or any such Subsidiary to terminategrant or pay for material pension, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical early retirement or other welfare benefits. Except as set forth on Section 3.10(c) benefits relating to retirement to current or former officers, directors or employees in excess of those provided by the Company Disclosure Schedule, Employment Agreements and the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with LawsEmployee Benefit Plans.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedule Letter sets forth a true, correct and complete and accurate list, as of the date of this Agreement, list of each material Company Benefit Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for with respect to each material Company Benefit Plan (orin each case to the extent applicable): (i) a copy of the plan document, if such Company Plan is not in writing, including all currently effective amendments thereto (or a detailed written description of the material terms thereofCompany Benefit Plan or any such amendment to the extent not reduced to writing), ; (bii) the most recent summary plan description and all currently effective summaries of material modifications; (iii) the most recent Internal Revenue Service determination, notification or opinion letter; (iv) each trust agreement, insurance contract, or other document relating to the funding or payment of benefits; and (v) the three most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) and the most recent summary plan description for each material Company Plan for which such summary plan description is requiredactuarial report, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and report.
(fb) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Benefit Plan is has been maintained, operated, and administered in material compliance with its terms and any related documents or agreements and in material compliance with all applicable Laws.
(c) Each Company Benefit Plan intended to be qualified under Section 401(a) of the applicable Code is so qualified and has been determined by the Internal Revenue Service (the “IRS”) to be so qualified, and each trust created thereunder has been determined by the IRS to be exempt from Tax under the provisions of ERISASection 501(a) of the Code, and nothing has occurred since the Code and all other applicable laws, except where date of any such noncompliance would not determination that could reasonably be expected to have a Company Material Adverse Effect. give the IRS grounds to revoke such determination.
(d) There are no suits, claims, proceedings, actions, governmental audits or investigations that are pending or, to the Knowledge of the Company, threatened threatened, against or involving any Company Benefit Plan or asserting any rights to or claims for benefits under any Company Benefit Plan (other than routine claims for benefits in benefits). No non-exempt “prohibited transaction” (within the ordinary coursemeaning of Section 4975 of the Code and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to any Company Plans, nor is any Company Plan under Benefit Plan.
(and the Company has received no notice that there is any threatenede) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsorscurrently has, maintains or contributes tohas ever had, nor has any liability with respect toan obligation to contribute to a “defined benefit plan” as defined in Section 3(35) of ERISA, a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code or a “multiemployer plan (plan” as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 Section 414(f) of the Code. With respect to each Company Pension Plan set forth on No material liability under Title IV or Section 3.10(b) 302 of ERISA has been incurred by the Company Disclosure Scheduleor any ERISA Affiliate that has not been satisfied in full, (i) and no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply condition exists that would could reasonably be expected to have present a material risk to the Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any ERISA Affiliate of incurring any such liability.
(f) No Company Benefit Plan provides for post-retirement or other payment post-employment welfare benefits (other than health care continuation coverage as required under by Section 412 4980B of the Code or Section 303 of ERISA has been made before similar state Law or coverage through the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver end of the minimum funding standards or an extension calendar month in which a termination of any amortization period within employment occurs).
(g) Neither the meaning execution of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, this Agreement nor the consummation of the Transactions transactions contemplated hereby will not, (either alone or in combination with another event, except as expressly provided in this Agreement, a result of termination of employment or service)
(i) entitle any current or former employee, director, independent contractor, consultant or leased employee of the Company or any Company Subsidiary to severance pay, unemployment any payment of compensation or any other payment, or benefits; (ii) accelerate the time of payment or vesting, or increase the amount of compensation or benefits due to any such employee individual; (iii) accelerate the vesting, funding or officer. Except time of payment of any compensation, equity award or other benefit; or (iv) result in the payment of any amount that could, individually or in combination with any other payment, constitute an “excess parachute payment,” as set forth on defined in Section 3.10(d280G(b)(1) of the Code.
(h) Each Company Disclosure ScheduleBenefit Plan, no amounts payable under and any award thereunder, that is subject to Sections 409A or 457A of the Company Plans will fail to be deductible for federal income tax purposes by virtue Code is in compliance with all applicable requirements of section 280G Sections 409A and 457A of the Code. This Section 3.10 constitutes Neither the sole and exclusive representation and warranty Company nor any Company Subsidiary has any obligation to gross-up, indemnify or otherwise reimburse any of their respective current or former employees, directors, independent contractors, consultants or leased employees for any Tax incurred by such individual, including under Sections 409A, 457A or 4999 of the Code, or any interest or penalty related thereto.
(i) Each Company Benefit Plan that is maintained outside of the United States primarily in respect of any current or former employees, directors, independent contractors, consultants or leased employees of the Company regarding pension and employee benefit liabilities, obligations, or any Company Subsidiary who are located outside of the United States (i) has been maintained in material compliance with its terms and applicable Laws, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
Appears in 1 contract
Samples: Merger Agreement (New Residential Investment Corp.)
Employee Benefits Matters. (i) Section 3.10(a3.01(o)(i) of the Company Disclosure Schedule Letter sets forth a complete and accurate listcorrect list of each material Benefit Plan that is an “employee welfare benefit plan” (as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), each material Benefit Plan that is an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) (each, a “Pension Plan”) and all other material Benefit Plans and Benefit Agreements that, in each case, are in effect as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent the Investor Representative complete and correct and complete copies of (aA) the current plan document for each material Company Benefit Plan (or, if such Company Plan is not in writing, a written description of the and each material terms thereof)Benefit Agreement, (bB) the most recent annual reports report on Form 5500 required to be (if any) filed with the Department of Labor U.S. Internal Revenue Service (the “IRS”) with respect to each Company Plan (if any such report was required)Benefit Plan, (cC) the most recent summary plan description (if any), and any summary of material modifications, prepared for each material Company such Benefit Plan for which such a summary plan description is required, required under applicable Law and (d) each trust agreement relating to any Company Plan, (eD) the most recent audited financial statement actuarial valuations for each such Benefit Plan (if any). To the Company’s knowledge, each Benefit Plan and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto Benefit Agreement has been administered, funded and (f) any invested in all material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is respects in compliance accordance with its terms and applicable Laws. To the applicable provisions of ERISACompany’s knowledge, the Company and its Subsidiaries and each Benefit Plan and Benefit Agreement are in compliance in all material respects with applicable Law, including ERISA and the Code, and the terms of any collective bargaining agreements or other labor union Contracts.
(ii) Each Pension Plan intended to be tax qualified under the Code has been the subject of a favorable determination, qualification or opinion letter from the IRS to the effect that such Pension Plan is qualified and all other applicable lawsexempt from United States Federal income Taxes under Sections 401(a) and 501(a), except where respectively, of the Code, and no such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending orletter has been revoked (nor, to the Knowledge knowledge of the Company, threatened claims (other than claims for benefits in has revocation been threatened) and no event has occurred since the ordinary course) with respect date of the most recent such letter or application therefor relating to any Company Plans, nor such Pension Plan that is any Company reasonably likely to adversely affect the qualification of such Pension Plan or materially increase the costs relating thereto or require security under Section 307 of ERISA.
(and iii) Neither the Company nor any Commonly Controlled Entity has received no notice that there is any threatened) audit sponsored, maintained, contributed to or administrative proceeding by the IRS, the Department of Laborbeen obligated to maintain or contribute to, or has any other Governmental Authority with respect to actual or contingent liability under, any Company Benefit Plan that, in each case, would reasonably be expected to have that is a Company Material Adverse Effect. All Company Plans that are “employee pension plansdefined benefit plan” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(373(35) of ERISA) or a plan “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA), or that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 that is otherwise a defined benefit pension plan or that provides for the payment of termination indemnities, other than any such plan that is sponsored by a Governmental Entity, and neither the Company nor any Commonly Controlled Entity could incur any liability with respect to any such plan (under Title IV of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; or otherwise).
(viv) no such plan has applied for or received a waiver Other than Stock Options held by members of the minimum funding standards or an extension Board of any amortization period within the meaning of Section 412 Directors as of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 Closing, none of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effectexecution and delivery of this Agreement, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical obtaining of Stockholder Approvals or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either Equity Investment or any other transaction contemplated by this Agreement alone or in combination with another eventwill, except as expressly provided in contemplated by this Agreement, accelerate the time of payment or vesting of any Stock Option. None of the execution and delivery of this Agreement, the obtaining of Stockholder Approvals or the consummation of the Equity Investment or any other transaction contemplated by this Agreement (whether alone or as a result of any termination of employment on or following the Closing) will, except as expressly contemplated by this Agreement, (iA) entitle any employee of the Company Personnel to severance payseverance, unemployment termination, retention, change in control or similar compensation or any other paymentbenefits, or (iiB) accelerate the time of payment or vesting, or trigger any payment or funding (through a grantor trust or otherwise) of, compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to any Benefit Plan or Benefit Agreement or (C) result in any breach or violation of, or a default under, any Benefit Plan or Benefit Agreement.
(v) No Benefit Plan provides health, medical or other welfare benefits (whether or not insured) with respect to employees or former employees (or any of compensation due any such employee or officer. Except as set forth on Section 3.10(dtheir beneficiaries) of the Company Disclosure Scheduleor any of its Subsidiaries after retirement or other termination of service (other than coverage or benefits required to be provided under Part 6 of Subtitle B of Title I of ERISA or any other similar applicable Law).
(vi) No Benefit Plan is maintained outside the jurisdiction of the United States, is by its terms governed by the Laws of any jurisdiction other than the United States or provides compensation or benefits to Company Personnel providing services primarily outside the United States.
(vii) As of the date of this Agreement, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This employee listed on Section 3.10 constitutes the sole and exclusive representation and warranty 3.01(o)(vii) of the Company regarding pension Letter has given notice to the Company that such employee intends to terminate his or her employment, and no such employee benefit liabilities, obligations, has given any indication to the Company that such employee intends to terminate his or her employment within the one-year period following the date of this Agreement.
(viii) Each Benefit Plan and each Benefit Agreement that is a “nonqualified deferred compensation plan” within the meaning of Treas. Reg. Section 1.409A 1(a)(1)(a) (a “Nonqualified Deferred Compensation Plan”) (A) was operated in compliance with LawsSection 409A of the Code between January 1, 2005 and December 31, 2008, based upon a good faith, reasonable interpretation of (1) Section 409A of the Code and (2) the final Treasury Regulations and other guidance issued by the IRS thereunder, to the extent applicable (clauses (1) and (2), together, the “409A Authorities”) and (B) has been operated in compliance with the 409A Authorities since January 1, 2009. Each Nonqualified Deferred Compensation Plan has been in documentary compliance with the 409A Authorities since January 1, 2009.
Appears in 1 contract
Samples: Investment Agreement (Express-1 Expedited Solutions Inc)
Employee Benefits Matters. (a) Section 3.10(a4.14(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of lists each material Company Benefit Plan. The Company has made available to Parent correct and complete copies of (aA) each Benefit Plan and amendment thereto or written summaries to the current plan document for each material Company Plan (or, if such Company extent a Benefit Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (cB) the most recent summary plan description for each descriptions and material Company Plan for which such summary plan description is requiredmodifications thereto, (d) each trust agreement relating to any Company Plan, (eC) the most recent audited financial statement and the actuarial or other valuation annual report prepared for (Form 5500), (D) the most recently completed plan year with respect thereto and recent Internal Revenue Service determination letter or opinion letter for any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, (fE) any material and all non-routine correspondence filings with any Governmental Authority with respect to each Benefit Plan, and (F) all current trust agreements, insurance contract or policy, group annuity contract, and any other funding arrangement and the most recent actuarial valuation report. No Benefit Plan covers, or has ever covered, Employees outside of the United States. The Company has no formal plan and has made no promise or commitment, whether legally binding or not, to create any additional Benefit Plan or to improve or materially change the benefits provided under any Benefit Plan.
(b) Each Benefit Plan is, and has been, established, registered, amended, funded, administered and invested in material compliance with the terms of such Benefit Plan (including the terms of any documents in respect of such Benefit Plan) and all applicable Laws, including ERISA and the Code. There is no investigation by a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions Action (other than routine claims for payment of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no benefits) pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in involving any Benefit Plan or the ordinary course) with respect assets thereof, and to any Company Plans, nor is any Company Plan under (and the Knowledge of the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would facts exist which could reasonably be expected to have a Company Material Adverse Effectgive rise to any such investigation or Action (other than routine claims for payment of benefits). All Company Plans Each Benefit Plan that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are is intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have has received a favorable determination letter from the IRS Internal Revenue Service or has filed is the subject of a timely application therefor favorable opinion letter from the Internal Revenue Service on the form of such Benefit Plan and, to the Knowledge of the Company, there are no facts or circumstances that would be reasonably likely to adversely affect the qualified status of any such Benefit Plan.
(c) None of the WH Entities has any Liability in respect of, or obligation to provide, post-employment or post-retirement health, medical, or life insurance benefits, whether under a Benefit Plan or otherwise, to any Employee (or to the beneficiaries or dependents of such Employees) other than as required by Law.
(d) None of the Company Pension Plan qualifies in all material respects under or any ERISA Affiliate sponsors, maintains, contributes to, or has any Liability with respect to (or has within the past six years sponsored, maintained, contributed to, or had any Liability with respect) to any (i) single employer pension plan that is subject to Section 401(a) 302 or Title IV of ERISA or Section 412 of the Code or (ii) any Multiemployer Plan (each such plan as described in operation. The Company has made available to Parent the foregoing clauses (i) and (ii), a correct and complete copy “Pension Plan”).
(e) To the Knowledge of the most recent determination letter received Company, no transaction or event has occurred with respect to each Company Pension Planany Benefit Plan that would subject any WH Entity to any unsatisfied, as well as a correct and complete copy of each pending application for a determination letterTax or penalty (civil or otherwise) imposed by EXXXX, if any. the Code or other applicable Law.
(f) Except as set forth on Section 3.10(b4.14(f) of the Company Disclosure Schedule, with the exception of the Transaction Bonuses, neither the Company execution of this Agreement nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will nottransactions contemplated by this Agreement will, either alone or in combination connection with another eventany other event (whether contingent or otherwise), except as expressly provided in this Agreement, reasonably be expected to: (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment payment, funding or vestingvesting of any compensation or benefits due to any Employee, or (ii) increase the amount of compensation or benefits due to any such employee Employee or officer. Except result in the funding of any compensation or benefits, or forgiveness of any loan, (iii) limit or restrict the right to amend, terminate or transfer the assets of any Benefit Plan on or following the Closing Date, or (iv) result in any payment or benefit, individually or in combination with any other payment or benefit, constituting an “excess parachute payment,” as set forth on defined in Section 3.10(d280G(b)(1) of the Company Disclosure ScheduleCode.
(g) Each Benefit Plan that is a “non-qualified deferred compensation plan” within the meaning of Code Section 409A has in all material respects been in operational and documentary compliance with Code Section 409A. No Benefit Plan provides for the gross-up, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes indemnification or reimbursement of any Taxes imposed by virtue of section 280G Section 409A or Section 4999 of the Code. This Section 3.10 constitutes .
(h) All Company Options have been granted in compliance with the sole terms of all applicable Law, including all applicable securities Laws, and exclusive representation and warranty of the Company regarding pension Stock Option Plan and employee benefit liabilities, obligations, or compliance with Lawshave a per share exercise price that is not less than the fair market value of a share of Company Common Stock on the date on which such Company Option was granted.
Appears in 1 contract
Employee Benefits Matters. Section 3.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) Section 4.10 of the current plan document for each material Company Plan Sellers Disclosure Letter contains a complete list of Employee Benefit Plans. Sellers have provided to Parent a copy (or, if such Company Plan is not in writingwith respect to any unwritten arrangement, a written description description) of each Employee Benefit Plan and, to the material terms thereof)extent applicable, the annual reports for the three most recent plan years, the most recent determination letter regarding the plan’s qualified status under the Code and the latest summary plan description.
(b) To the most recent annual reports on Form 5500 required to be filed with the Department knowledge of Labor with respect to Sellers, each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Employee Benefit Plan is and has been maintained in compliance compliance, in all material respects, with its terms and the applicable provisions of ERISAall applicable Laws, the Code rules and all other applicable lawsregulations, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending orincluding, to the Knowledge of the Companywithout limitation, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (ERISA and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Code. Each Employee Benefit Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under “qualified” within the meaning of Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor is so qualified and, to the Knowledge knowledge of each Seller, there are no facts which would adversely affect the qualified status of any such Employee Benefit Plan. Sellers and any ERISA Affiliates have never sponsored or maintained an “employee pension benefit plan” subject to Title IV of ERISA or the minimum funding requirements of Section 412 of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationCode. The Company has made available to Parent a correct Sellers and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains Affiliates have never maintained or contributes to, nor has incurred any liability with respect to, a to any “multiemployer plan plan” (as defined in Section 3(37) of ERISA).
(c) or a plan subject There are no pending or, to section 302 or Title IV the knowledge of ERISA or section 412 each Seller, threatened claims against the assets of any of the CodeEmployee Benefit Plans or the trusts established to hold the assets of those plans or the fiduciaries of such plans. With respect to each Company Pension No Employee Benefit Plan set forth on Section 3.10(b) is the subject of an ongoing audit, investigation or other administrative proceeding of the Company Disclosure ScheduleInternal Revenue Service, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 the Department of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment Labor or any other payment required Governmental Authority, and no Employee Benefit Plan is the subject of any pending application for administrative relief under Section 412 any voluntary compliance program of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse EffectInternal Revenue Service, the Company Department of Labor or any other Governmental Authority.
(d) Neither the execution and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) delivery of the Company Disclosure Schedule, this Agreement nor the consummation of the Transactions will not, transactions contemplated hereby (either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other paymentevent) will result in (1) any payment becoming due, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such payment, or accelerate the timing or vesting of any payment to any current or former employee or officer. Except as set forth on Section 3.10(d) independent contractor or group of employees or independent contractors of the Company Disclosure ScheduleBusiness pursuant to any of the Employee Benefit Plans, no amounts payable or (2) the imposition of any excise tax under Section 4999 of the Company Plans will fail to be deductible for federal income tax purposes by virtue Code or the denial of section any deduction under Section 280G of the Code. This Section 3.10 constitutes Code for any period prior to the sole and exclusive representation and warranty Closing Date, for which in the case of the Company regarding pension and employee benefit liabilities, obligations, either (1) or compliance with Laws(2) Purchaser will be liable.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a3.11(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as lists each Benefit Plan.
(b) With respect to each Benefit Plan listed in Section 3.11(a) of the date of this AgreementDisclosure Schedule, of each material Company Plan. The the Company has delivered or made available to Parent correct Purchaser true, accurate and complete copies of each of the following: (ai) the current plan document for each material Company Plan document, together with all amendments thereto, and any applicable trust, insurance, funding or custodial agreement, (orii) copies of any summary plan descriptions, if such Company Plan (iii) in the case of any plan that is not in writingintended to be qualified under Section 401(a) of the Code, a written description copy of the material terms thereof), (b) the most recent annual reports on Form determination or opinion letter from the Internal Revenue Service, (iv) (x) in the case of any plan for which Forms 5500 are required to be filed with the Department filed, a copy of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredrecently filed Forms 5500, with schedules attached and (d) each trust agreement relating to any Company Plan, (ey) the most recent audited financial statement and statements, (v) in the actuarial case of any plan that is intended or other valuation report prepared for required to be registered under the Income Tax Act (Canada) or any applicable federal or provincial pension legislation, evidence of such registration, (vi) in the case of any “registered pension plan” within the meaning of Section 248(1) of the Income Tax Act (Canada), a copy of (A) the most recently completed plan year with respect thereto filed annual information return, (B) the most recently filed actuarial report, if any, (C) the current statement of investment policies and procedures and most recently filed investment information summary, if applicable, (D) any applicable investment management agreement and (fE) any governance policy or funding policy, (vii) written summaries of all non-written Benefit Plans, including any summaries of material and amendments, (viii) non-routine correspondence with a Governmental Authority regarding relating to any pending auditBenefit Plan and (ix) all current employee booklets, investigationhandbooks, claim or dispute under any Company Plan. Each Company Plan manuals and policies.
(c) There is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims Legal Action relating to a Benefit Plan (including the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Benefit Plan with respect to the operation thereof), other than routine claims for benefits in the ordinary course) course of business for benefits provided for by the Benefit Plans and other actions, suits or claims that, individually or in the aggregate, have not had and would not reasonably be expected to materially and adversely affect the Company Group, taken as a whole. Each Benefit Plan has been established, maintained, sponsored, funded, invested (where applicable), and administered in compliance in all material respects with all applicable Laws and in accordance with its terms. There are no audits, inquires or investigations pending, or, to the Knowledge of the Company, threatened by the Internal Revenue Service or the United States Department of Labor or any Governmental Body with respect to any Company PlansBenefit Plan. To the Knowledge of the Company, nor is any Company Plan under (and the Company has received no notice facts or circumstances exist that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have give rise to any such Legal Action, audits, inquiries, or investigations, other than any Legal Action, audit, inquiry, or investigation that would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company Group, taken as a Company Material Adverse Effectwhole. All Company Plans that are No non-exempt “employee pension plansprohibited transaction” (as defined in within the meaning of Section 3(3406 of ERISA and Section 4975 of the Code) of ERISAhas occurred or is reasonably expected to occur with respect to any Benefit Plan.
(d) Each Benefit Plan that are is intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have has received a current favorable determination letter from the IRS Internal Revenue Service or has filed is the subject of a timely application therefor favorable opinion letter from the Internal Revenue Service on the form of such Benefit Plan and, to the Knowledge of the Company, there are no facts or circumstances that would be reasonably likely to adversely affect the qualified status of such Company Pension Benefit Plan. Each Benefit Plan qualifies that is intended to be registered or qualified under the Income Tax Act (Canada) or other applicable legislation in all material respects under Section 401(a) Canada is duly registered and, to the Knowledge of the Code in operation. The Company has Company, there are no facts or circumstances that would be reasonably likely to adversely affect the registered or qualified status of such Benefit Plan.
(e) With respect to the Benefit Plans, all required contributions, premiums, and payments that are required to have been made available to Parent a correct and complete copy as of the most recent determination letter received date hereof have been timely made or properly accrued. No event has occurred, and to the Knowledge of the Company, no condition exists that would, alone or by reason of the Company’s affiliation with respect any of its ERISA Affiliates, subject any member of the Company Group to each Company Pension Planany material Tax, as well as a correct and complete copy of each pending application for a determination letterfine, if any. Lien, penalty or other liability imposed by ERISA, the Code or any other Law.
(f) Except (i) as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b3.11(f) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 601 et seq. of ERISA, Section 4980B of the Code or Section 303 similar state or provincial law, or (iii) at the sole expense of the participant or the participant’s beneficiary, no Benefit Plan provides benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment.
(g) Neither the Company nor any Subsidiary of the Company nor any current or former ERISA Affiliate maintains, contributes to or is obligated to contribute to, nor has the Company or any Subsidiary of the Company or any ERISA Affiliate in the last six (6) years maintained, contributed to, been obligated to contribute to, nor has the Company or any ERISA Affiliate ever incurred in the last six (6) years any liability under, (i) a plan subject to Title IV of ERISA has been made before the applicable due date except or Code Section 412, including, but not limited to, any “multiemployer plan” (as would not reasonably be expected to have a Company Material Adverse Effect; defined in Sections 3(37) and 4001(a)(3) of ERISA), (vii) no such plan has applied for or received a waiver “multiple employer plan” as defined in Section 413(c) of the minimum funding standards or an extension of any amortization period Code, (iii) a “multiple employer welfare arrangements” within the meaning of Section 412 3(40) of the Code ERISA, or Sections 302 or 303 of ERISA that is currently in effect; and (viiv) there are no fundinga “multi-based benefit limitations (employer plan” within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c147.1(1) of the Income Tax Act (Canada) or any applicable federal or provincial pension legislation.
(h) None of the members of the Company Disclosure ScheduleGroup, nor any ERISA Affiliates maintains, sponsors, or has any liability with respect to any Benefit Plan that is subject to the Laws of any jurisdiction outside of the United States. No Subsidiary of the Company sponsors or maintains, or has ever sponsored or maintained, any Benefit Plan that is a “registered pension plan” or a “retirement compensation arrangement” within the meaning of Section 248(1) of the Income Tax Act (Canada), including any such plan that contains a “defined benefit provision” within the meaning of Section 147.1(1) of the Income Tax Act (Canada).
(i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will not, either transactions contemplated hereby could (alone or in combination with another any other event, except as expressly provided in this Agreement, ) (i) entitle any employee employee, director, officer or independent contractor of any member of the Company Group to severance pay, unemployment compensation or any other paymentpayment or benefit, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation or benefit due to any employee, director, officer or independent contractor, (iii) directly or indirectly cause any member of the Company Group to transfer or set aside any assets to fund any benefits under any Benefit Plan, (iv) otherwise give rise to any material liability under any Benefit Plan, (v) limit or restrict the right to amend, terminate or transfer the assets of any Benefit Plan on or following the Closing or (vi) result in any payment or benefit that would constitute an “excess parachute payment” (as such employee or officer. Except as set forth on term is defined in Section 3.10(d280G(b)(1) of the Company Disclosure ScheduleCode) to any current or former employee, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue director, officer or independent contractor of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty any member of the Company regarding pension Group. No member of the Company Group maintains any obligations to gross-up or reimburse any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code or otherwise.
(j) There is no action currently contemplated to be taken by any member of the Company Group, and employee benefit liabilitiesno action has been taken by any member of the Company Group, obligationsin respect of the service providers of any member of the Company Group or any such individual’s compensation or benefits, or compliance with Lawsin each case, in response to the COVID-19 pandemic.
Appears in 1 contract
Samples: Merger Agreement (Deluxe Corp)
Employee Benefits Matters. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedule Letter sets forth a complete and accurate listforth, as of the date of this Agreementhereof, a true and complete list of each material Company Benefit Plan. The With respect to each material Company Benefit Plan, Company has made available to Parent correct true and complete copies of (ai) the current plan document for each material such Company Benefit Plan (or, if such in the case of any unwritten Company Plan is not in writingBenefit Plan, a written description of the material terms thereof), (bii) the most recent annual reports report on Form 5500 required to be filed with the Department of Labor with respect to each such Company Benefit Plan (and all schedules and attachments thereto, if any such report was required), (ciii) the most recent summary plan description for each material such Company Benefit Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (eiv) the most recent audited financial statement and the actuarial or other valuation report prepared report, if any, for each such Company Benefit Plan, (v) the most recently completed plan year with respect thereto recent determination, advisory or opinion letter received from the IRS for each such Company Benefit Plan (if applicable) and (fvi) any all material and non-routine correspondence with a Governmental Authority regarding any pending auditrelating to such Company Benefit Plan since April 1, investigation2019.
(b) Except as would not, claim individually or dispute under any in the aggregate, have or reasonably be expected to have a Company Plan. Each Material Adverse Effect, (i) the Company Plan is Benefit Plans are and have been established, maintained, funded, operated, and administered in all respects in compliance with its their terms and applicable Law, (ii) all contributions, reimbursements, distributions, and premium payments with respect to each Company Benefit Plan that are required to be made have been timely made or paid in accordance with the Company Benefit Plan’s terms and in compliance with applicable Laws, or have been properly accrued on Company’s audited financial statements and (iii) there are no pending or, to the knowledge of Company, threatened Actions or claims on behalf of or relating to a Benefit Plan (other than routine claims for benefits thereunder).
(c) Except as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect, (i) no Company Benefit Plan that is an “employee welfare benefit plan”, as described in Section 3(1) of ERISA (each, a “Company Welfare Benefit Plan”), is funded or insured through a “welfare benefits fund”, as such term is defined in Code Section 419(e), (ii) each Company Welfare Benefit Plan that is a “group health plan”, as such term is defined in Code Section 5000(b)(1), complies with the applicable provisions requirements of Code Section 4980B(f), (iii) each Company Welfare Benefit Plan (in each case including any such plan covering retirees or other former employees) may be amended or terminated without Liability to any member of the Company Group, other than for claims incurred prior to the date of such termination, on or at any time after the Effective Time and (iv) no Company Benefit Plan provides health or life insurance benefits after termination of employment, except as required by Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA and where the premium cost of coverage thereof is borne entirely by the former employee (or his or her eligible dependents).
(d) Except as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect, no Controlled Group Liability has been incurred by Company or any Company Subsidiary nor do any circumstances exist that would reasonably be expected to result in Controlled Group Liability for any of Company or any Company Subsidiary following the Closing.
(e) Except as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any ERISA Affiliate has engaged in any transaction described in Section 4069 or Section 4204 of ERISA and (ii) no Company Benefit Plan is, and no member of the Company Group has any Liability with respect to, a (A) Multiemployer Plan or (B) plan that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.
(f) Except as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect, each Company Benefit Plan that is an “employee pension benefit plan”, as defined in Section 3(2) of ERISA (each, a “Company Pension Benefit Plan”), and that is intended to be tax qualified has been the subject of favorable determination letters from the IRS with respect to all Tax Law changes with respect to which the IRS has provided a current favorable determination letter to the effect that such Company Pension Benefit Plans are qualified and exempt from federal income Taxes under Sections 401(a) and 501(a) of the Code, respectively, and no such determination letter has been revoked nor, to the knowledge of Company, has revocation been threatened, and no condition exists that would adversely affect or result in the revocation of any such determination or cause the imposition of any Liability, penalty or Tax under ERISA or the Code with respect to such determination.
(g) No Company Pension Benefit Plan had, as of the respective last annual valuation date for such Company Pension Benefit Plan, an “unfunded benefit liability”, as such term is defined in Section 4001(a)(18) of ERISA, based on actuarial assumptions that have been made available to Parent, and, to the Code and all other applicable lawsknowledge of Company, there has been no material adverse change in the financial condition of any Company Pension Benefit Plan since its last such annual valuation date. No Company Pension Benefit Plan or any trust established thereunder has failed to satisfy the “minimum funding standards” (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, as of the last day of the most recently ended fiscal year of such Company Pension Benefit Plan, except where such noncompliance for instances that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. There are no pending .
(h) None of Company or any Company Subsidiary or, to the Knowledge knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company PlansEmployee or any trustee, nor is fiduciary or administrator of any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of LaborBenefit Plan, or any other Governmental Authority with respect to any Company Plan thatrelated trust, has engaged in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Planprohibited transaction”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) 406 of ERISA) for which a reporting waiver does not apply ERISA or Code Section 4975, or any other breach of fiduciary responsibility that would reasonably be expected to have a subject Company, any Company Material Adverse Effect; (iiiSubsidiary or any Company Employee to the Tax or penalty on prohibited transactions imposed by such Code Section 4975 or to any liability under Section 502(i) no such plan or 502(1) of ERISA. No Company Benefit Plan or related trust has been required terminated, nor has there been any “reportable event”, as such term is defined in Section 4043 of ERISA, with respect to file information pursuant any Company Benefit Plan during the last six years.
(i) The execution and delivery of each Transaction Document to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment which Company or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right is a party do not, and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions and compliance with the terms hereof and thereof will not, either alone or in combination connection with another any other event, except as expressly provided in this Agreement, directly or indirectly (i) entitle any employee of the current or former Company Employee to severance payany bonus, unemployment compensation equity or any other paymentequity-based, non-qualified compensation, severance, termination, retention, transaction, change in control or similar pay or benefits, (ii) accelerate the time of payment, funding or vesting or trigger any payment (whether in cash, property or vestingthe vesting of property) or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under or trigger any other obligation pursuant to, any Company Benefit Plan, (iii) result in any breach or violation of, or a default under, any Company Benefit Plan, or (iv) result in any payment that could be considered an “excess parachute payment” within the Company Plans will fail to be deductible for federal income tax purposes by virtue meaning of section Section 280G of the Code. This None of Company or any Company Subsidiary is a party to or has any obligation under any Company Benefit Plan to gross-up or indemnify any person for excise Taxes payable pursuant to Section 3.10 constitutes 409A or 4999 of the sole Code.
(j) Each Company Benefit Plan that is subject to Section 409A or Section 457A of the Code has been administered in compliance with its terms and exclusive representation Section 409A or Section 457A of the Code, as applicable (including the operational and warranty documentary requirements thereof) and all applicable regulatory guidance thereunder (including, notices, rulings and proposed and final regulations). No payment to be made under any Company Benefit Plan is, or to the knowledge of Company, will be, subject to additional Taxes under Section 409A(a)(1) or Section 457A(c) of the Code.
(k) Section 4.10(k) of the Company regarding pension Disclosure Letter sets forth, as of the Capitalization Date, a complete and employee benefit liabilitiesaccurate list of each outstanding Vista Outdoor Equity Award granted under a Company Equity Plan specifying, obligationson a holder-by-holder basis, (i) the name of each holder, (ii) the number of shares of Company Common Stock subject thereto (assuming achievement of any applicable performance criteria at the maximum level), (iii) the grant date thereof, (iv) the exercise price thereof and (v) the expiration or compliance vesting date thereof, in each case to the extent applicable.
(l) Company has not issued any Vista Outdoor Option that has an exercise price that is less than the “fair market value” of the underlying shares on the date of grant, as determined for financial accounting purposes under GAAP. Each Vista Outdoor Equity Award is evidenced by written award agreements, in each case substantially in the forms that have been made available to Parent, except that such outstanding award agreements may differ from such provided forms with Lawsrespect to certain provisions thereof, but no such different provisions shall impose on Parent any continuing obligations after the Closing. Each Company Equity Award may, by its terms, be treated in accordance with Section 2.04. Each Outdoor Products Equity Award may, by its terms, be treated in accordance with Article VI of the Employee Matters Agreement.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a3.10(a)(i) of the Company Disclosure Schedule Letter sets forth a complete and accurate list, as of the date of this Agreement, list of each material Company Benefit Plan. The Section 3.10 (a)(ii) of the Company Disclosure Letter sets forth a complete and accurate list of each material Company Benefit Agreement.
(b) With respect to each Company Benefit Plan and each Company Benefit Agreement, the Company has delivered or made available to Parent correct complete and complete accurate copies of (ai) the current plan document for each material such Company Benefit Plan or Company Benefit Agreement, including any amendment thereto (or, if such in the case of any unwritten Company Benefit Plan is not in writingor Company Benefit Agreement, a written description of the material terms thereof), (bii) each trust, insurance, annuity or other funding Contract related thereto, (iii) the most recent summary plan description and any summary of material modifications (if any) prepared for each Company Benefit Plan, (iv) the most recent financial statements and actuarial or other valuation reports prepared with respect thereto, (v) the most recent determination or opinion letter from the Internal Revenue Service (“IRS”) and (vi) the most recent annual reports on Form 5500 required to be filed with the Department of Labor IRS with respect to each Company Plan thereto (if any). Except as specifically provided in the foregoing documents delivered or made available to Parent, there are no material amendments to any Company Benefit Plan or Company Benefit Agreement that have been adopted or approved nor has the Company or any Company Subsidiary undertaken to make any such report was required), amendments or to adopt or approve any new Company Benefit Plan or Company Benefit Agreement.
(c) the most recent summary plan description for Each Company Benefit Plan and each material Company Plan for which such summary plan description is required, Benefit Agreement (d) each and any related trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (ffunding vehicle) any has been administered in all material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is respects in compliance accordance with its terms and is in compliance in all material respects with the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Code and all other applicable provisions Laws. Each of the Company and the Company Subsidiaries is in compliance in all material respects with ERISA, the Code and all other Laws applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse EffectBenefit Plans and Company Benefit Agreements. There are no pending orNone of the Company or any Company Subsidiary has received written notice of and, to the Knowledge knowledge of the Company, threatened claims there are no material investigations by any Governmental Entity with respect to or termination proceedings or other material claims, suits or proceedings (other than except routine claims for benefits payable in the ordinary course) against or involving any Company Benefit Plan or Company Benefit Agreement.
(d) All contributions, premiums and benefit payments under or in connection with each Company Benefit Plan and each Company Benefit Agreement that are required to have been made by the Company or any Company Subsidiary in accordance with the terms of such Company Benefit Plan and Company Benefit Agreement and applicable Laws have been timely made or paid or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the most recent financial statements contained in the Filed Company SEC Documents to the extent required by GAAP.
(e) The IRS has issued a favorable determination letter with respect to any each Company Plans, nor Benefit Plan that is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax a “qualified under plan” within the meaning of Section 401(a) of the Code (each, a “Company Pension Qualified Plan”) have received a favorable determination letter from and the IRS or related trust that has filed a timely application therefor not been revoked and, to the Knowledge knowledge of the Company, no event or circumstance exists that is likely to adversely affect the qualified status of such Company Pension Qualified Plan qualifies in all material respects under Section 401(aor related trust.
(f) None of the Code in operation. The Company, any Company has made available Subsidiary or any Commonly Controlled Entity has, during the past six years, sponsored, maintained, contributed to Parent a correct and complete copy of the most recent determination letter received with respect or been required to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains maintain or contributes contribute to, nor or has any actual or contingent liability with respect tounder, any Company Benefit Plan that is a multiemployer plan “defined benefit plan” (as defined in Section 3(373(35) of ERISA), a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control (within the meaning of Section 4063 of ERISA) or a plan that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before is otherwise a defined benefit plan under applicable Law in the applicable due date except as would not reasonably be expected to have a relevant jurisdiction.
(g) No Company Material Adverse Effect; (v) no such plan has applied for Benefit Plan or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination Benefit Agreement provides health, medical medical, life insurance or other welfare benefits. Except as set forth on Section 3.10(cbenefits with respect to current or former employees (or any of their beneficiaries) of the Company Disclosure Scheduleor any Company Subsidiary after retirement or other termination of employment (other than coverage or benefits (i) required to be provided under Part 6 of Title I of ERISA or Section 4980B(f) of the Code, or any other applicable Law, or (ii) the full cost of which is borne by the current or former employee (or any of their beneficiaries)), and no circumstances exist that could result in the Company or any Company Subsidiary becoming obligated to provide any such benefits. There has been no communication to employees by the Company or any Company Subsidiary which could reasonably be interpreted to promise or guarantee such employees health, medical, life insurance or other welfare benefits on a permanent basis.
(h) None of the execution and delivery of this Agreement or the consummation of the Transactions will not, either Offer or the Merger or any other Transaction (alone or in combination conjunction with another any other event, except as expressly provided in this Agreement, including any termination of employment on or following the consummation of the Offer) will (i) entitle any employee of Participant to any material compensation or benefit from the Company to severance pay, unemployment compensation or any other paymentCompany Subsidiary, or (ii) accelerate the time of payment or vesting, or increase trigger any payment or funding, of any compensation or benefit or trigger any other material obligation under any Company Benefit Plan or Company Benefit Agreement or (iii) result in any breach or violation of, or default under, or limit the Company’s right to amend, modify or terminate, any Company Benefit Plan or Company Benefit Agreement.
(i) No amount or other entitlement that could be received as a result of compensation due the execution and delivery of this Agreement or the consummation of the Offer, the Merger or any such employee other Transaction (alone or officer. Except in conjunction with any other event, including any termination of employment on or following the consummation of the Offer) by any “disqualified individual” (as set forth on defined in Section 3.10(d280G(c) of the Company Disclosure Schedule, no amounts payable under Code) with respect to the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code). This No Participant is entitled to receive any gross-up or additional payment from the Company or any Company Subsidiary by reason of any tax being imposed on such person, including any tax required by Section 3.10 constitutes the sole and exclusive representation and warranty 409A or 4999 of the Code.
(j) Without limiting the generality of (b) through (i) above, with respect to each Company regarding pension Benefit Plan that is subject to the Laws of a jurisdiction other than the United States (whether or not United States law also applies) (a “Foreign Benefit Plan”): (i) all employer and employee contributions to each Foreign Benefit Plan required by Law or by the terms of such Foreign Benefit Plan have been made, or if applicable, accrued in accordance with normal accounting practices, (ii) the fair market value of the assets of each funded Foreign Benefit Plan, the liability of each insurer for any Foreign Benefit Plan funded through insurance or the book reserve established for any Foreign Benefit Plan, together with any accrued contributions is sufficient to procure or provide for the accrued benefit liabilities, obligations, as of the date of this Agreement, with respect to all current and former participants in such plan according to reasonable actuarial assumptions and no transaction contemplated by this Agreement shall cause such assets, reserve or compliance insurance obligations to be less than such benefit obligations, and (iii) each Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with Lawsapplicable regulatory authorities.
Appears in 1 contract
Samples: Merger Agreement (Accelrys, Inc.)
Employee Benefits Matters. Section 3.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent prior to the date hereof correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof)Plan, (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor IRS with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, required and (d) each trust agreement and insurance or group annuity contract relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is has been, in all material respects, administered in compliance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS on which they are entitled to rely or has have filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationthat remains pending. The Company has made available to Parent prior to the date hereof a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither Neither the Company nor any trade or business, whether or not incorporated, that together with the Company would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA Affiliate sponsors(including any entity that during the past six (6) years was a Subsidiary of the Company) has now or at any time within the previous six (6) years contributed to (or been required to contribute to), maintains sponsored, maintained, or contributes to, nor has had any liability with respect to, to a multiemployer plan Multiemployer Plan (as defined in Section 3(37) of ERISA) or a plan subject to section Section 302 or Title IV of ERISA or section Section 412 of the Code. With respect The Company has no liability or obligation to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Scheduleprovide postretirement medical or life insurance benefits to any its employees or former employees, (i) no proceeding has been initiated to terminate such plan under Sections 4041 officers, or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment directors, or any other payment dependent or beneficiary thereof, except as otherwise required under Section 412 of the Code state or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effectfederal benefits continuation laws. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the The consummation of the Transactions will not, either alone or in combination with another eventevent (where such event would not independently have such effect), except as expressly provided in by this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except , (iii) increase any benefits payable under any Company Plan, (iv) result in the payment of any amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment,” as set forth on defined in Section 3.10(d280G(b)(1) of the Company Disclosure ScheduleCode, no amounts payable under (v) result in the triggering or imposition of any restrictions or limitations on the rights of the Company Plans will fail to amend or terminate any Company Plan, or (vi) entitle the recipient of any payment or benefit to receive a “gross up” payment for any income or other taxes that might be deductible for federal income tax purposes by virtue owed with respect to such payment or benefit. The treatment of section 280G Options and Restricted Stock set forth in Section 2.4 does not violate the terms of the CodeCompany Stock Plans or any other equity plans or agreement governing the terms of such Options or Restricted Stock. The Company is and at all times has been in material compliance with all Laws governing the employment of labor and the withholding of Taxes. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding compliance with Laws relating to pension and employee benefit liabilities, or liabilities or obligations, or compliance with Laws.
Appears in 1 contract
Employee Benefits Matters. Section 3.10(a) promptly, and in any event within 5 days after a Responsible Officer becoming aware of any of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writingfollowing, a written description of notice setting forth the material terms thereof)nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:
(bi) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required)Pension Plan, (cany reportable event, as defined in section 4043(c) of ERISA and the most recent summary plan description for each material Company Plan regulations thereunder, for which notice thereof has not been waived pursuant to such summary plan description is requiredregulations as in effect on the date hereof, (d) each trust agreement relating to which in the case of any Company Plan, (e) the most recent audited financial statement and the actuarial Pension Plan sponsored or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance maintained by an ERISA Affiliate would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or;
(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan which in the case of any Pension Plan sponsored or maintained by an ERISA Affiliate would reasonably be expected to have a Material Adverse Effect, or the receipt by the Company or any ERISA Affiliate (to the Knowledge extent would reasonably be expected to result in a Material Adverse Effect) of a notice from a Multiemployer Plan that such action has been taken by the Company, threatened claims (other than claims for benefits in the ordinary course) PBGC with respect to such Multiemployer Plan;
(iii) any Company Plansevent, nor is transaction or condition that would reasonably be expected to result in the incurrence of any Company Plan under (and liability by the Company has received no notice that there is or any threatened) audit ERISA Affiliate pursuant to Title I or administrative proceeding by IV of ERISA or the IRS, penalty or excise tax provisions of the Department of LaborCode relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other Governmental Authority with respect to any Company Plan that, in each casesuch liabilities or Liens then existing, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” ; or
(as defined in Section 3(3iv) receipt of ERISA) that are intended to be tax qualified under Section 401(a) notice of the Code imposition of a Material financial penalty (eachwhich for this purpose shall mean any tax, a “Company Pension Plan”penalty or other liability, whether by AG Twin Brook Capital Income Fund Master Note Purchase Agreement way of indemnity or otherwise) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains one or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply more Non-U.S. Plans that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Laws.;
Appears in 1 contract
Samples: Master Note Purchase Agreement (AG Twin Brook Capital Income Fund)
Employee Benefits Matters. (a) Section 3.10(a4.8(a) of the Company Alpha Disclosure Schedule sets forth contains a true, correct and complete and accurate list, as list of all material Alpha Plans in effect on the date hereof. Prior to the date of this Agreement, of each material Company Plan. The Company Alpha has provided or made available to Parent Foundation true, correct and complete copies as in effect on the date hereof of each of the following, to the extent requested by Foundation prior to the date hereof, as applicable, with respect to each such Alpha Plan: (ai) the current plan document for each material Company Plan (or agreement or, if such Company with respect to any Alpha Plan that is not in writing, a written description of the material terms thereof), ; (bii) any summary plan description required to be furnished to participants pursuant to ERISA; (iii) the most recent annual reports on Form 5500 required report, actuarial report and/or financial report, if any; (iv) all amendments or modifications to be filed with any such documents; (v) the Department of Labor most recent determination letter received from the Internal Revenue Service with respect to each Company Alpha Plan that is intended to be a "qualified plan" under Section 401 of the Code; and (if any such report was required), (cvi) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredrequired Internal Revenue Service Form 5500, including all schedules thereto.
(db) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance Except as would not have or reasonably be expected to have a Company have, individually or in the aggregate, an Alpha Material Adverse Effect. There , with respect to each Alpha Plan, (i) all expenses, contributions, premiums or payments required to be made to, under or with respect to such Alpha Plan have been timely made and all amounts properly accrued to date or as of the Effective Time as liabilities of Alpha or any of its Subsidiaries which are no pending ornot yet due have been properly recorded on the books of Alpha and, to the Knowledge extent required by GAAP, adequate reserves are reflected on the financial statements of the CompanyAlpha, threatened claims (other than claims for benefits in the ordinary courseii) with respect to any Company Plans, nor each such Alpha Plan which is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “an "employee pension plans” benefit plan" (as defined in Section 3(33(2) of ERISA) that are and intended to be tax qualified qualify under Section 401(a) 401 of the Code (each, a “Company Pension Plan”) have has received a favorable determination letter from the IRS or has filed a timely application therefor Internal Revenue Service with respect to such qualification, and, to the Knowledge knowledge of Alpha, nothing has occurred since the Companydate of such letter that has affected, or would reasonably be expected to adversely affect, such Company Pension qualification, (iii) with respect to any Alpha Plan qualifies maintained outside the United States, all applicable foreign qualifications or registration requirements have been satisfied in all material respects, except where any failure to comply would not result in any material liability to Alpha or its Subsidiaries, (iv) there are no Proceedings pending (other than routine claims for benefits) or, to the knowledge of Alpha, threatened or anticipated with respect to such Alpha Plan, any fiduciaries of such Alpha Plan with respect to their duties to any Alpha Plan, or against the assets of such Alpha Plan or any trust maintained in connection with such Alpha Plan, (v) such Alpha Plan has been operated and administered in compliance in all material respects under Section 401(awith its terms and all applicable Laws and regulations, including ERISA and the Code, and (vi) there is not now, and to the knowledge of Alpha there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the Code in operation. The Company has made available to Parent a correct and complete copy posting of the most recent determination letter received security with respect to each Company Pension Planan Alpha Plan or the imposition of any pledge, as well as a correct and complete copy lien, security interest or encumbrance on the assets of each pending application for a determination letterAlpha or any of its Subsidiaries or any of their respective ERISA Affiliates under ERISA or the Code, if any. Except as set forth on Section 3.10(bor similar Laws of foreign jurisdictions.
(c) Neither Alpha nor any of the Company Disclosure Schedule, neither the Company its Subsidiaries nor any ERISA Affiliate sponsorsAffiliate, that, together with Alpha or any of its Subsidiaries would be deemed to be a "single employer" within the meaning of Section 4001(b) of ERISA, (i) maintains or contributes to, nor has to (A) any liability with respect to, a multiemployer plan (as defined in "employee benefit plan" within the meaning of Section 3(373(3) of ERISA) or a plan ERISA that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or (B) a "multiemployer plan" within the meaning of Section 303 3(37) and 4001(a)(3) of ERISA has been made before or a "multiple employer plan" within the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (vmeaning of Sections 4063/4064 of ERISA or Section 413(c) no such plan has applied for or received a waiver of the minimum Code, or (ii) has incurred or reasonably expects to incur any material liability pursuant to Title IV of ERISA (including any Controlled Group Liability), other than for premium payments to the Pension Benefit Guaranty Corporation. No Alpha Plan of Alpha, any of its Subsidiaries or any of their respective ERISA Affiliates has an "accumulated funding standards deficiency" (whether or an extension of any amortization period not waived) within the meaning of Section 412 of the Code or Sections Section 302 or 303 of ERISA ERISA. With respect to each Alpha Plan that is currently a "multiemployer plan," no complete or partial withdrawal from such plan has been made by Alpha or any of its Subsidiaries that would reasonably be expected to result in effect; a material liability to Alpha or any of its Subsidiaries.
(d) No deduction for federal income Tax purposes has been or is expected by Alpha to be disallowed for compensation paid by Alpha or any of its Subsidiaries by reason of Section 162(m) of the Code, including by reason of the transactions contemplated hereby.
(e) To the knowledge of Alpha, no Alpha Plan is under audit or is the subject of an investigation, in each case by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or threatened.
(f) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise), (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of Alpha or any of its Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, or (iv) result in any amount failing to be deductible by reason of Section 280G of the Code.
(g) To the knowledge of Alpha, all options have been granted in compliance with the terms of the applicable Alpha Plans, with applicable Law, and with the applicable provisions of the Alpha Certificate of Incorporation or Alpha Bylaws as in effect at the applicable time, and all such options are accurately disclosed as required under applicable Law in the Alpha SEC Reports, including the financial statements contained therein or attached thereto (viif amended or superseded by a filing with the SEC made prior to the date of this Agreement, as so amended or superseded). To the knowledge of Alpha, Alpha has not issued any options or any other similar equity awards pertaining to shares of Alpha Common Stock under any Alpha Plan with an exercise price that is less than the "fair market value" of the underlying shares of Alpha Common Stock on the date of grant, as determined for financial accounting purposes under GAAP.
(h) there are no funding-based benefit limitations (Each Alpha Plan that is a "nonqualified deferred compensation plan" within the meaning of Section 436 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code) currently , has been operated in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend compliance in all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on material respects with Section 3.10(c) 409A of the Company Disclosure ScheduleCode since January 1, the consummation 2006, based upon a good faith, reasonable interpretation of (A) Section 409A of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, Code and (iB)(1) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, regulations issued thereunder or (ii2) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with LawsInternal Revenue Service Notice 2005-1.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a3.12(a) of the Company Disclosure Schedule sets forth a true, complete and accurate correct list, as of the date of this Agreementhereof, of each material “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA“), and each employment, bonus, incentive or deferred compensation, stock option or other equity-based, severance, termination, retention, change of control, or other plan, agreement or program, entered into, maintained, sponsored or contributed to by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is obligated to contribute (such plans, agreements and programs, together with any such plan, agreement or program with respect to which the Company or any of its Subsidiaries may have any liability, herein referred to as the “Company Plans“). Those Company Plans primarily for the benefit of employees who are U.S. citizens or residents are herein referred to as “U.S. Company Plans“.
(b) The Company and each of its Subsidiaries have established, operated and administered each Company Plan in compliance with all applicable Laws and the terms of each such Plan. The Company has made available to Parent correct and complete copies terms of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year are in compliance with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Planall applicable Laws. Each Company Plan that is in compliance with its terms and the applicable provisions intended to be “qualified” under Section 401 of ERISA, the Code and all other applicable lawshas received a favorable determination letter from the Internal Revenue Service (the “IRS“) to such effect and, except where to the Knowledge of Seller, no fact, circumstance or event has occurred or exists since the date of such noncompliance determination letter that would not reasonably be expected to have a adversely affect the qualified status of any such U.S. Company Material Adverse EffectPlan. There are no pending or, to the Knowledge of the CompanySeller, threatened claims or anticipated Legal Proceedings by, on behalf of or against any of the Company Plans or any assets thereof (other than routine claims for benefits in the ordinary course) with respect to ). Seller has not received notice of any Company Plansadministrative investigation, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or other administrative proceeding by the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation, the Internal Revenue Service or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans Entities that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (eachprogress, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor andpending or, to the Knowledge of Seller, threatened.
(c) With respect to any U.S. Company Plans and no event has occurred and no condition exists that would subject the CompanyCompany or its Subsidiaries, such Company Pension Plan qualifies in all material respects under Section 401(aby reason of their affiliation with any member of their “Controlled Group” (defined as any organization which is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m), or (o) of the Code in operation. The Company has made available Code), to Parent a correct and complete copy any Tax, fine, lien, penalty or other liability imposed by Title IV of ERISA or failure to meet the minimum funding standards of Section 412 of the most recent determination letter received Code or the related rules and regulations. Except as would not reasonably be expected to result in material liability, no “reportable event” (as such term is defined in section 4043 of ERISA), no nonexempt “prohibited transaction” (as such term is defined in section 406 of ERISA and Section 4975 of the Code) or “accumulated funding deficiency” (as such term is defined in section 302 of ERISA and Section 412 of the Code (whether or not waived)) has occurred with respect to each any U.S. Company Pension Plan, as well as . No U.S. Company Plan is a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a “multiemployer plan plan” (as defined in Section 3(37) of ERISA) or a “multiple employer” plan subject to section 302 (as defined in Section 4063 or Title IV 4064 of ERISA or section 412 of the Code. ERISA).
(d) With respect to each any U.S. Company Pension Plan set forth on Section 3.10(b) that provides retirees welfare benefits, the accumulated post-retirement benefit obligations of the Company Disclosure Scheduleor its Subsidiaries set forth in the actuarial reports dated as of June 2007 provided to the Purchaser and the assumptions used therefore were calculated in accordance with generally accepted actuarial principles.
(e) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event, (i) no proceeding has been initiated result in any material benefit or compensation becoming due or payable, or required to terminate such plan under Sections 4041 be provided, to any director or 4042 employee of ERISA; the Company or any of its Subsidiaries, (ii) there has been no materially increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director or employee, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, (iv) result in payment under any of the U.S. Company Plans which would not be deductible by reason of Section 280G of the Code or (v) result in the occurrence of a “reportable eventrestricted date” (under the SENA Pension Plan or the SENA Pension Plan for Union Members, as such term is defined in Section 4043(bsuch U.S. Company Plans.
(f) With respect to each U.S. Company Plan, the Company has made available true, complete and correct copies of ERISAthe following (as applicable): (i) the written document evidencing such U.S. Company Plan; (ii) the summary plan description for each U.S. Company Plan for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effectsummary plan description is required; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed yearrecent actuarial valuation report, annual report and/or financial statement; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before most recent determination letter from the applicable due date except as would not reasonably be expected to have a Company Material Adverse EffectIRS; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within most recent trust agreements; (vi) the meaning of Section 412 of most recent Form 5500 required to have been filed with the Code or Sections 302 or 303 of ERISA that is currently in effectIRS; and (vivii) there are no funding-based benefit limitations all material amendments, modifications or supplements to any such document.
(within the meaning of g) Section 436 3.12(g) of the CodeCompany Disclosure Schedule sets forth a true, correct and complete list of each Canadian Company Plan. With respect to each Canadian Company Plan, each participating employer in a Canadian Company Plan is a Subsidiary. No Canadian Company Plan and no participating employer therein has any obligations under any Canadian Company Plan to provide benefits to any Person who is not an employee or former employee of a participating employer or their beneficiaries therein.
(h) currently With respect to each of the Canadian Company Plans, in effect. Other than as would not reasonably be expected addition to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on documents disclosed in Section 3.10(c3.12(g) of the Company Disclosure Schedule, the consummation Company has made available true, correct and complete copies of each of the Transactions will notfollowing documents (as applicable): (i) if the Canadian Company Plan is funded through any third party funding arrangement other than a trust, either alone a copy of the current agreement governing that arrangement, including all amendments thereto, and the most recent financial information related to such arrangement; and (ii) all other Contracts material to the Canadian Company Plan, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements.
(i) With respect to each of the Canadian Company Plans that is a Canadian Company Pension Plan, without limiting the deliveries contemplated by Section 3.12(h) above, the Company has made available to Purchaser true, correct and complete copies of each of the following documents (as applicable): (i) evidence that the Canadian Company Pension Plan and all of the amendments thereto have been accepted for registration for purposes of the Income Tax Act (Canada) and the applicable federal or provincial pension legislation, including the most recent letter of confirmation of registration of the Canadian Company Pension Plan thereunder; (ii) any statement of investment policies and goals whether or not such statement or policy has been filed with any applicable Governmental Entity; (iii) the most recently completed actuarial valuation report in respect of the Canadian Company Pension Plan whether or not filed with any applicable Governmental Entity; (iv) the most recent annual information return filed in respect of the Canadian Company Pension Plan with any applicable Governmental Entity and (v) the written document evidencing such Canadian Company Plan.
(j) With respect to each of the Canadian Company Pension Plans and to the Knowledge of Seller and except as would not reasonably be expected to, individually or in combination with another eventthe aggregate, except as expressly provided result in this Agreementany material liability, (i) entitle any employee the Canadian Company Pension Plan is and has been duly registered and in good standing under, and nothing has occurred which may result in the revocation of the registration of the Canadian Company to severance pay, unemployment compensation Pension Plan under the Income Tax Act (Canada) or any other payment, applicable federal or provincial pension legislation; (ii) accelerate no Canadian Company Pension Plan is a multi-employer pension plan or equivalent as defined under applicable Canadian Law; (iii) the time Canadian Company Pension Plan is in compliance with applicable federal or provincial pension legislation and funding plans have been filed with and accepted for filing by the applicable Governmental Entities; (iv) there has been no withdrawal or transfer of assets from the funding arrangements for the Canadian Company Pension Plan (other than payments of benefits to eligible beneficiaries, refunds to plan members of over-contributions, payments on termination or transfer of employment of an individual employee and payment of reasonable expenses, all to the extent permitted by the Canadian Company Pension Plan, the associated funding arrangement and Law) and no application for approval of such a withdrawal or vesting, transfer of assets has been made to any Governmental Entity; (v) there has been no partial wind-up of a Canadian Company Pension Plan and no circumstances have occurred that would require a partial wind-up or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) termination of the Canadian Company Disclosure Schedule, no amounts payable under Pension Plan pursuant to Law or the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G terms of the Code. This Section 3.10 constitutes Canadian Company Pension Plan or the sole associated funding arrangement; and exclusive representation and warranty (vi) any application of surplus assets of the Canadian Company regarding pension Pension Plan to offset required employer contributions to such Pension Plan was permitted by Law and employee benefit liabilities, obligations, or compliance with Lawsthe terms of the Canadian Company Pension Plan and the associated funding arrangement.
Appears in 1 contract
Employee Benefits Matters. Section 3.10(apromptly, and in any event within five (5) days after a Responsible Officer becoming aware of any of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writingfollowing, a written description of notice setting forth the material terms thereof)nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:
(bi) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required)Pension Plan, (cany reportable event, as defined in section 4043(c) of ERISA and the most recent summary plan description for each material Company Plan regulations thereunder, for which notice thereof has not been waived pursuant to such summary plan description is requiredregulations as in effect on the date hereof, (d) each trust agreement relating to Trinity Capital Inc. Master Note Purchase Agreement which in the case of any Company Plan, (e) the most recent audited financial statement and the actuarial Pension Plan sponsored or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance maintained by an ERISA Affiliate would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or;
(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan which in the case of any Pension Plan sponsored or maintained by an ERISA Affiliate would reasonably be expected to have a Material Adverse Effect, or the receipt by the Company or any ERISA Affiliate (to the Knowledge extent would reasonably be expected to result in a Material Adverse Effect) of a notice from a Multiemployer Plan that such action has been taken by the Company, threatened claims (other than claims for benefits in the ordinary course) PBGC with respect to such Multiemployer Plan;
(iii) any Company Plansevent, nor is transaction or condition that would reasonably be expected to result in the incurrence of any Company Plan under (and liability by the Company has received no notice that there is or any threatened) audit ERISA Affili ate pursuant to Title I or administrative proceeding by IV of ERISA or the IRS, penalty or excise tax provisions of the Department of LaborCode relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other Governmental Authority with respect to any Company Plan that, in each casesuch liabilities or Liens then existing, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” ; or
(as defined in Section 3(3iv) receipt of ERISA) that are intended to be tax qualified under Section 401(a) notice of the Code imposition of a Material financial penalty (eachwhich for this purpose shall mean any tax, a “Company Pension Plan”penalty or other liability, whether by way of indemnity or otherwise) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains one or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply more Non‑U.S. Plans that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Laws.;
Appears in 1 contract
Samples: Master Note Purchase Agreement (Trinity Capital Inc.)
Employee Benefits Matters. (a) Section 3.10(a) of the Company Disclosure Schedule sets forth a true and complete list of all Company Plans. Section 3.10(a) of the Company Disclosure Schedule separately sets forth a true and accurate listcomplete list of all Multiemployer Plans to which the Company or any of its Subsidiaries makes, as or has an obligation to make, contributions or with respect to which the Company or any of its Subsidiaries have, or would reasonably be expected to have, any material liability, contingent or otherwise (each, a “Company Multiemployer Plan”). Within 60 days following the date of this Agreement, the Company will make available to the Parent a list of contributions required to be made by the Company or any of its Subsidiaries to each material Company Plan. Multiemployer Plan since June 1, 2015.
(b) The Company has made available to Parent correct and complete copies of of, as applicable, (ai) the current plan and trust document for each material written Company Plan (or, if to the extent that no such Company Plan is not in writingcopy exists, a an accurate written description of the material terms thereof), (bii) the most recent Form 5500 or other applicable annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required)Plan, (ciii) the most recent actuarial report for such Company Plan, if applicable, (iv) the most recent summary plan description for each material Company Plan for which such a summary plan description is required, and (div) each trust agreement any material correspondence to or from any Governmental Authority relating to any Company Plan since June 1, 2015.
(c) The Company and its Subsidiaries have not incurred any material withdrawal liability with respect to any Company Multiemployer Plans that has not been satisfied in full. The Company and its Subsidiaries have timely made all required contributions to all Company Multiemployer Plans in all material respects. To the Knowledge of the the Company, Company Multiemployer Plan (i) has received a notice of insolvency or (ii) is “endangered” or in “critical status” under Section 432 of the Code. For each Company Multiemployer Plan, (e) the most recent audited financial statement Company has made available to Parent correct and complete copies of all material information that has been provided to the actuarial Company or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority of its Subsidiaries regarding any pending audit, investigation, claim assessed or dispute potential withdrawal liability under any such Company Multiemployer Plan. .
(d) Each Company Plan is has been administered in compliance in all material respects with its terms and the in compliance in all material respects with applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse EffectLaws. There are no pending or, to the Knowledge of the Company, threatened claims Proceedings (other than routine claims for benefits in the ordinary coursebenefits) with respect to any Company Plans, nor is any Company Plan under .
(and the Company has received no notice that there is any threatenede) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension benefit plans” (as defined in Section 3(33(2) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed may rely on a timely application therefor favorable opinion letter issued by the IRS and, to the Knowledge of the Company, no circumstances exist that are likely to adversely affect the qualified status of any such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationCode. The Company has made available to Parent a correct and complete copy of the most recent determination or opinion letter received from the IRS with respect to each Company Pension Plan, as well as . Each trust funding a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Company Plan that is intended to be tax exempt under Section 3.10(b501(c)(9) of the Company Disclosure ScheduleCode (i) has received, neither has applied for, or will timely apply for a favorable determination letter from the Company nor any ERISA Affiliate sponsorsIRS recognizing its exempt status, maintains or contributes to, nor (ii) has any liability been drafted and operated in all material respects in compliance with respect to, a multiemployer plan (as defined in the requirements of Section 3(37501(c)(9) of ERISAthe Code and (iii) or a plan subject to section 302 or the Knowledge of the Company, no circumstances exist that are likely to adversely affect the exempt status of such trust.
(f) No material liability under Title IV of ERISA ERISA, the Code or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of other applicable Laws has been incurred by the Company Disclosure Scheduleor any of its Subsidiaries that has not been satisfied in full, (i) and no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply condition exists that would reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect; (iii) no such plan has been required Effect under Title IV of ERISA, other than liability for premiums due to file information the Pension Benefit Guaranty Corporation. No material assets of the Company or its Subsidiaries are or would reasonably be expected to be subject to a lien pursuant to Section 4010 the Code or ERISA with respect to any Company Plan. No Company Plan subject to Title IV of ERISA for the current or most recently completed year; (iva “Title IV Company Plan”) each required installment or has incurred any other payment required under “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code Code), or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected failed to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of timely satisfy the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations standard (within the meaning of Section 436 302 of ERISA or Sections 412 and 430 of the Code), in each case whether or not waived. No Company Plan is “at risk” under Section 430 of the Code.
(g) currently in effect. Other than as would not reasonably be expected to have a No Company Material Adverse EffectPlan provides for, and the Company and its Subsidiaries have reserved are not otherwise obligated to provide, any gross-up or reimbursement of Taxes under Section 409A or 4999 of the right and power Code.
(h) No Company Plan obligates the Company or its Subsidiaries to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, any current or former employee (or any dependent thereof) any life insurance or medical or other welfare benefits. Except as set forth on Section 3.10(c) health benefits after his or her termination of employment with the Company Disclosure Scheduleor any of its Subsidiaries, other than as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
(i) The consummation of the Transactions will not, either alone or in combination with another any other event, except as expressly provided in this Agreement, (i) entitle any employee current or former employee, director or independent contractor of the Company or any of its Subsidiaries to severance pay, unemployment compensation pay or any other paymentpayment under a Company Plan upon such consummation or upon any termination of employment in connection with such consummation, or (ii) accelerate the time of payment payment, funding or vesting, or increase the amount of compensation due any such employee current or officer. Except as set forth on Section 3.10(dformer employee, director or independent contractor or result in the forgiveness of any indebtedness of any such employee, director or independent contractor, or (iii) of result in payments or benefits that will be made by the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to or any of its Subsidiaries which would not be deductible for federal income tax purposes by virtue of section Section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Laws.
Appears in 1 contract
Employee Benefits Matters. (a) Set forth on Section 3.10(a3.24(a) of the Company Disclosure Schedule sets forth Letter is a true and complete and accurate list, as of the date of this Agreement, list of each material Company Benefit Plan. The Company has made available .
(b) As applicable with respect to Parent correct each Benefit Plan, the Companies and their Subsidiaries have delivered to Buyer, true and complete copies of (ai) each Benefit Plan, including all amendments thereto, and in the current plan document for each material Company Plan (or, if such Company Plan is not in writingcase of an unwritten Benefit Plan, a written description thereof, (ii) all trust documents, investment management contracts, custodial agreements and insurance contracts relating thereto, (iii) the current summary plan description and each summary of material modifications thereto, (iv) the material terms thereofmost recently filed annual reports (Form 5500 and all schedules thereto), (bv) the most recent annual reports on Form 5500 required Internal Revenue Service (“IRS”) determination or opinion letter and each currently pending application to be filed with the IRS for a determination letter and (vi) all records, notices and filings concerning IRS or Department of Labor with respect to each Company Plan (if any such report was required)audits or investigations, “prohibited transactions” within the meaning of Section 406 of ERISA or Section 4975 of the Code and “reportable events” within the meaning of Section 4043 of ERISA.
(c) The Companies, their Subsidiaries and each ERISA Affiliate are in compliance in all material respects with the most recent summary plan description for each material Company Plan for which such summary plan description is requiredprovisions of ERISA, (d) each trust agreement relating the Code and other laws applicable to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company PlanBenefit Plans. Each Company Benefit Plan is has been maintained, operated and administered in compliance in all material respects with its terms and any related documents or agreements and the applicable provisions of ERISA, the Code and other laws except that in any case in which any Benefit Plan is currently required to comply with a provision of ERISA, the Code or another applicable law, but is not yet required to be amended to reflect such provision, it has been maintained, operated and administered in accordance with such provision. Any noncompliance or failure properly to administer a Benefit Plan or related trust has not exposed such Benefit Plan or related trust, either of the Companies or any of their Subsidiaries, any ERISA Affiliate or the Buyer to any taxes, penalties or liabilities to any person, the Benefit Plan to disqualification or the trust to a loss of tax-exempt status.
(d) The Benefit Plans which are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and which are intended to meet the qualification requirements of Section 401(a) of the Code (each a “Pension Plan”) now meet, and at all other applicable lawstimes since their inception have met the requirements for such qualification, except where such noncompliance would not reasonably be expected and the related trusts are now, and at all times since their inception have been, exempt from taxation under Section 501(a) of the Code.
(e) No Benefit Plan is now or at any time has been subject to have Part 3, Subtitle B of Title I of ERISA or Title IV of ERISA. Neither of the Companies, any of their Subsidiaries nor any ERISA Affiliate has ever contributed to, or been required to contribute to any “multiemployer plan” (within the meaning of Section 3(37) of ERISA) and neither of the Companies, any of their Subsidiaries nor any ERISA Affiliate has any liability (contingent or otherwise) relating to the withdrawal or partial withdrawal from a Company Material Adverse Effect. multiemployer plan.
(f) There are no pending oraudits or investigations by any governmental agency involving any Benefit Plan, and, to the Knowledge knowledge of the CompanyStockholder, no threatened or pending claims (other than except for individual claims for benefits payable in the ordinary coursenormal operation of the Benefit Plans), suits or proceedings involving any Benefit Plan, any fiduciary thereof or service provider thereto, nor to the best knowledge of the Stockholder, the Companies and their Subsidiaries is there any basis for any such claim, suit or proceeding.
(g) Neither of the Companies, any of their Subsidiaries, any ERISA Affiliate, nor to the best knowledge of the Stockholder and the Companies, any fiduciary, trustee or administrator of any Benefit Plan, has engaged in or, in connection with the transactions contemplated by this Agreement, will engage in any transaction with respect to any Company PlansBenefit Plan which would subject any such Benefit Plan, nor is either of the Companies or any Company Plan of their Subsidiaries, any ERISA Affiliate or Buyer to a tax, penalty or liability for a “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code.
(h) The Companies, their Subsidiaries and each ERISA Affiliate have complied in all material respects with the notice and continuation coverage requirements of Section 4980B of the Code and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority regulations thereunder with respect to any Company each Benefit Plan that, in each case, would reasonably be expected to have that is a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in group health plan within the meaning of Section 3(35000(b)(1) of ERISAthe Code. Each Benefit Plan is in compliance in all material respects with the applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) that are intended to be tax and the regulations issued thereunder.
(i) No Benefit Plan provides benefits, including, without limitation, death or medical benefits, beyond termination of service or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge Code. Neither of the CompanyCompanies, such Company Pension Plan qualifies in all material respects under Section 401(a) any of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company their Subsidiaries nor any ERISA Affiliate sponsorshas made a written or oral representation to any current or former employee promising or guaranteeing any employer paid continuation of medical, maintains dental, life or contributes todisability coverage for any period of time beyond retirement or termination of employment.
(j) Stockholder’s execution of, nor has and performance of the transactions contemplated by this Agreement will not constitute an event under any liability Benefit Plan that will result in any payment (whether as severance pay or otherwise), acceleration, vesting or increase in benefits with respect to, to any employee.
(k) To the extent that any Benefit Plan constitutes a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable eventnon-qualified deferred compensation plan” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 409A of the Code, such Benefit Plan has been operated in good faith compliance with Section 409A of the Code.
(l) currently in effectNeither of the Companies, any of their Subsidiaries nor any ERISA Affiliate has any commitment to modify or amend any Benefit Plan (except as required by law or to retain the tax qualified status of any Benefit Plan). Other than Neither of the Companies, any of their Subsidiaries, nor any ERISA Affiliate has any commitment to establish any new benefit plan, program or arrangement.
(m) The Companies and their Subsidiaries have, for purposes of each Benefit Plan and for all other purposes, correctly classified all individuals performing services for the Companies as would not reasonably be expected to have a Company Material Adverse Effectcommon law employees, the Company and its Subsidiaries have reserved the right and power to terminateindependent contractors or agents, suspend, discontinue and amend all Company Plans that as applicable.
(n) The assets of each Benefit Plan which provide for post-termination healthretirement, medical or other welfare benefitslife insurance benefits following retirement are at least equal to the liabilities of such Benefit Plan. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions Buyer will not, either alone or in combination incur no liability with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company respect to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of Benefit Plan with respect to service thereunder performed before the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with LawsClosing Date.
Appears in 1 contract
Employee Benefits Matters. Section 3.10(a(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (ai) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof)Plan, (bii) each Non-U.S. Company Plan, (iii) the most recent annual reports on Form 5500 required to be filed with the Department of Labor IRS with respect to each Company Plan (if any such report was required), (civ) the most recent summary plan description for each material Company Plan for which such summary plan description is required, required and (dv) each trust agreement and insurance or group annuity contract relating to any Company Plan. Section 3.12(a) of the Company Disclosure Schedule contains a true, (e) the most recent audited financial statement correct and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto complete list of each material Company Plan and (f) any material and noneach Non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any U.S. Company Plan. , except for any incentive, compensation, retention or employment arrangement that provides for annual compensation, payments or benefits of less than $350,000 in the aggregate for any one employee.
(b) Each Company Plan is and Non-U.S. Company Plan has been administered in compliance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable laws, Laws (as applicable) except where such noncompliance would not reasonably be expected to be materially adverse to the Company and the Company Subsidiaries, taken as a whole. All contributions, premiums and payments under or in connection with any Company Plan or Non-U.S. Company Plan required to be made under the terms of any Company Plan or Non-U.S. Company Plan, a related trust, insurance contract or other funding arrangement, or pursuant to applicable Law, including ERISA and the Code, have been timely made, except as would not reasonably be expected to be materially adverse to the Company and the Company Subsidiaries, taken as a Company Material Adverse Effectwhole. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) ), actions, complaints, investigations, petitions, suits or other proceedings with respect to any Company Plans or Non-U.S. Company Plans, nor is plan sponsors or plan administrators or any Company Plan under (and fiduciaries of the Company has received no notice that there is any threatened) audit Plans or administrative proceeding by the IRSNon-U.S. Company Plans, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, except as would not reasonably be expected to have be materially adverse to the Company and the Company Subsidiaries, taken as a Company Material Adverse Effect. whole.
(c) All Company Plans that are “employee pension plans” (as defined in Section 3(33(2) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationtherefor. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Nothing has occurred since the date of such determination letter that would be reasonably likely to materially adversely affect such qualification.
(d) Except as set forth on Section 3.10(b3.12(d) of the Company Disclosure Schedule, the company does not have any Tax gross-up obligation for any Taxes imposed under Section 4999 or Section 409A of the Code.
(e) Neither the Company nor any ERISA Affiliate has now or at any time within the previous six (6) years contributed to, sponsored, maintained or had an obligation to contribute to a (i) Multiemployer Plan (as defined in Section 3(37) of ERISA), (ii) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA or (iii) a “multiple employer plan” as defined in Section 413(c) of the Code.
(f) Except as set forth on Section 3.12(f) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor Company Subsidiary has any material liability with in respect toof post-retirement health, a multiemployer plan (as defined in Section 3(37) of ERISA) medical or a plan subject to section 302 life insurance benefits for retired, former or Title IV of ERISA current employees or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) directors of the Company Disclosure Schedule, or the Company Subsidiaries except as required to comply with Section 4980B of the Code or any similar state Law.
(ig) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no Each Company Plan which is a “reportable eventnon-qualified deferred compensation plan” (as such term is defined in Section 4043(b409A(d)(1) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently is in effect. Other than as would not reasonably be expected material compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder.
(h) With respect to each Non-U.S. Company Plan: (i) all employer and employee contributions to each Non-U.S. Company Plan required by Laws or by the terms of such Non-U.S. Company Plan have a been made, or, if applicable, accrued in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Non-U.S. Company Material Adverse EffectPlan, the liability of each insurer for any Non-U.S. Company and its Subsidiaries have reserved Plan funded through insurance or the right and power book reserve established for any Non-U.S. Company Plan, together with any accrued contributions, is sufficient to terminate, suspend, discontinue and amend all Company Plans that procure or provide for postthe accrued benefit obligations, as of the Closing Date, with respect to all current or former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Non-termination health, medical U.S. Company Plan and no transaction contemplated by this Agreement shall cause such assets or other welfare benefits. insurance obligations to be less than such benefit obligations; and (iii) each Non-U.S. Company Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
(i) Except as set forth on Section 3.10(c3.12(i) of the Company Disclosure Schedule, the execution and delivery of this Agreement or the performance and consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee current or former employee, director or individual independent contractor of the Company to severance paypay or benefits, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation or benefits due any such employee or officer. Except as set forth on Section 3.10(d, including equity-based awards under any Company Plan or Non-U.S. Company Plan or (iii) trigger any funding of the compensation or benefits under any Company Disclosure Schedule, no amounts payable under the Plan or Non-U.S. Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with LawsPlan.
Appears in 1 contract
Samples: Merger Agreement (Epiq Systems Inc)
Employee Benefits Matters. (a) Section 3.10(a3.8(a) of the Company Foundation Disclosure Schedule sets forth contains a true, correct and complete and accurate list, as list of all material Foundation Plans in effect on the date hereof. Prior to the date of this Agreement, of each material Company Plan. The Company Foundation has provided or made available to Parent Alpha true, correct and complete copies as in effect on the date hereof of each of the following, to the extent requested by Alpha prior to the date hereof, as applicable, with respect to each such Foundation Plan: (ai) the current plan document for each material Company Plan (or agreement or, if such Company with respect to any Foundation Plan that is not in writing, a written description of the material terms thereof), ; (bii) any summary plan description required to be furnished to participants pursuant to ERISA; (iii) the most recent annual reports on Form 5500 required report, actuarial report and/or financial report, if any; (iv) all amendments or modifications to be filed with any such documents; (v) the Department of Labor most recent determination letter received from the Internal Revenue Service with respect to each Company Foundation Plan that is intended to be a “qualified plan” under Section 401 of the Code; and (if any such report was required), (cvi) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredrequired Internal Revenue Service Form 5500, including all schedules thereto.
(db) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance Except as would not have or reasonably be expected to have have, individually or in the aggregate, a Company Foundation Material Adverse Effect. There , with respect to each Foundation Plan, (i) all expenses, contributions, premiums or payments required to be made to, under or with respect to such Foundation Plan have been timely made and all amounts properly accrued to date or as of the Effective Time as liabilities of Foundation or any of its Subsidiaries which are no pending ornot yet due have been properly recorded on the books of Foundation and, to the Knowledge extent required by GAAP, adequate reserves are reflected on the financial statements of the CompanyFoundation, threatened claims (other than claims for benefits in the ordinary courseii) with respect to any Company Plans, nor each such Foundation Plan which is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are an “employee pension plansbenefit plan” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and intended to qualify under Section 401 of the Code (each, a “Company Pension Plan”) have has received a favorable determination letter from the IRS or has filed a timely application therefor Internal Revenue Service with respect to such qualification, and, to the Knowledge knowledge of Foundation, nothing has occurred since the Companydate of such letter that has affected, or would reasonably be expected to adversely affect, such Company Pension qualification, (iii) with respect to any Foundation Plan qualifies maintained outside the United States, all applicable foreign qualifications or registration requirements have been satisfied in all material respects, except where any failure to comply would not result in any material liability to Foundation or its Subsidiaries, (iv) there are no Proceedings pending (other than routine claims for benefits) or, to the knowledge of Foundation, threatened or anticipated with respect to such Foundation Plan, any fiduciaries of such Foundation Plan with respect to their duties to any Foundation Plan, or against the assets of such Foundation Plan or any trust maintained in connection with such Foundation Plan, (v) such Foundation Plan has been operated and administered in compliance in all material respects under Section 401(awith its terms and all applicable Laws and regulations, including ERISA and the Code, and (vi) there is not now, and to the knowledge of Foundation there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the Code in operation. The Company has made available to Parent a correct and complete copy posting of the most recent determination letter received security with respect to each Company Pension Plana Foundation Plan or the imposition of any pledge, as well as lien, security interest or encumbrance on the assets of Foundation or any of its Subsidiaries or any of their respective ERISA Affiliates under ERISA or the Code, or similar Laws of foreign jurisdictions.
(c) Neither Foundation nor any of its Subsidiaries nor any trade or business, whether or not incorporated (an “ERISA Affiliate”), that, together with Foundation or any of its Subsidiaries would be deemed to be a correct and complete copy “single employer” within the meaning of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b4001(b) of the Company Disclosure ScheduleERISA, neither the Company nor any ERISA Affiliate sponsors, (i) maintains or contributes to, nor has to (A) any liability with respect to, a multiemployer plan (as defined in “employee benefit plan” within the meaning of Section 3(373(3) of ERISA) or a plan ERISA that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or (B) a “multiemployer plan” within the meaning of Section 303 3(37) and 4001(a)(3) of ERISA has been made before or a “multiple employer plan” within the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (vmeaning of Sections 4063/4064 of ERISA or Section 413(c) no such plan has applied for or received a waiver of the minimum Code, or (ii) has incurred or reasonably expects to incur any material liability pursuant to Title IV of ERISA (including any Controlled Group Liability), other than for premium payments to the Pension Benefit Guaranty Corporation. No Foundation Plan of Foundation, any of its Subsidiaries or any of their respective ERISA Affiliates has an “accumulated funding standards deficiency” (whether or an extension of any amortization period not waived) within the meaning of Section 412 of the Code or Sections Section 302 or 303 of ERISA ERISA. With respect to each Foundation Plan that is currently a “multiemployer plan,” no complete or partial withdrawal from such plan has been made by Foundation or any of its Subsidiaries that would reasonably be expected to result in effect; a material liability to Foundation or any of its Subsidiaries.
(d) No deduction for federal income Tax purposes has been or is expected by Foundation to be disallowed for compensation paid by Foundation or any of its Subsidiaries by reason of Section 162(m) of the Code, including by reason of the transactions contemplated hereby.
(e) To the knowledge of Foundation, no Foundation Plan is under audit or is the subject of an investigation, in each case by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or threatened.
(f) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise), (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of Foundation or any of its Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, or (iv) result in any amount failing to be deductible by reason of Section 280G of the Code.
(g) To the knowledge of Foundation, all options have been granted in compliance with the terms of the applicable Foundation Plans, with applicable Law, and with the applicable provisions of the Foundation Certificate of Incorporation or the Foundation Bylaws as in effect at the applicable time, and all such options are accurately disclosed as required under applicable Law in the Foundation SEC Reports, including the financial statements contained therein or attached thereto (viif amended or superseded by a filing with the SEC made prior to the date of this Agreement, as so amended or superseded). To the knowledge of Foundation, Foundation has not issued any options or any other similar equity awards pertaining to Shares under any Foundation Plan with an exercise price that is less than the “fair market value” of the underlying Shares on the date of grant, as determined for financial accounting purposes under GAAP.
(h) there are no funding-based benefit limitations (Each Foundation Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 436 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code) currently , has been operated in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend compliance in all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on material respects with Section 3.10(c) 409A of the Company Disclosure ScheduleCode since January 1, the consummation 2006, based upon a good faith, reasonable interpretation of (A) Section 409A of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, Code and (iB)(1) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, regulations issued thereunder or (ii2) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with LawsInternal Revenue Service Notice 2005-1.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a2.11(a) of the Company Disclosure Schedule sets forth a true and complete and accurate list, as of the date of this Agreementhereof, of each material Company Listed Plan. The .
(b) With respect to each Listed Plan the Company has made available to Parent correct and complete CABO copies of of, as applicable, (ai) the current plan document for each material Company Plan (orand trust document, if such Company Plan is not in writing, a written description of the material terms thereof)and any amendments thereto, (bii) the most recent annual reports report on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required)filed, (ciii) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredprovided to participants, (d) each trust agreement relating to any Company Plan, (eiv) the most recent audited financial statement current IRS determination letter, and the actuarial or other valuation report prepared (v) nondiscrimination and top-heavy testing results under applicable Law for the most recently completed plan year with respect thereto and year.
(fc) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is has been established, administered, and funded in material compliance with its terms and in compliance with the applicable provisions of ERISAall applicable Law, including ERISA and the Code Code, and all other applicable lawsthe Company's and its Subsidiaries' provision of compensation and benefits, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending oras applicable, to all Participants is and at all times during the Knowledge of the Company, threatened claims past six (other than claims for benefits 6) years has been in the ordinary coursematerial compliance with all applicable Laws.
(d) with respect to any Company Plans, nor is any Company Plan under (and Neither the Company nor its Subsidiaries has received no notice that there is incurred any threatened) audit material liability for any excise, income or administrative proceeding by the IRS, the Department of Labor, other taxes or any other Governmental Authority penalties with respect to any Company Plan thator otherwise with respect to the compensation or benefits of any Participant, in each case, would and no event has occurred and no circumstance exists or has existed that could reasonably be expected to give rise to any such material liability. With respect to each Company Plan, there has occurred no non-exempt "prohibited transaction" (within the meaning of Section 4975 of the Code or Section 406 of ERISA) or breach of any fiduciary duty described in Section 404 of ERISA that could reasonably be expected to result in any material liability for the Company or its Subsidiaries.
(e) Except as would not result in a material liability for the Company or its Subsidiaries, the Company, its Subsidiaries and each Company Plan are in compliance with the Patient Protection and Affordable Care Act and its companion bxxx, the Health Care and Education Reconciliation Act of 2010 (the "Health Care Law"), to the extent applicable, and neither the Company nor its Subsidiaries have a Company Material Adverse Effect. incurred any material penalty pursuant to the Health Care Law.
(f) All Company Plans that are “or were "employee pension benefit plans” " (as defined in Section 3(33(2) of ERISA) that are or were intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”the "Qualified Plans") have received a favorable determination letter from the IRS or IRS, each such determination remains in effect and has filed not been revoked, and nothing has occurred that would reasonably be expected to adversely affect the qualified status of such Qualified Plan.
(g) Each Company Plan that constitutes a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan "nonqualified deferred compensation plan" (as defined in Section 3(37409A(d)(1) of ERISAthe Code) is, and has been, established, administered and maintained in material compliance with the documentary and operational requirements of Section 409A of the Code and the regulations promulgated thereunder.
(h) The Company and its Subsidiaries do not maintain, sponsor, contribute to or a have any liability (including on behalf of an ERISA Affiliate) under or with respect to any plan that (A) is or was in the last six (6) years subject to section Section 302 or Title IV of ERISA or section Section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (iB) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; is otherwise a defined benefit pension plan, (iiC) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period "multiemployer plan" within the meaning of Section 412 3(37) of ERISA, (D) is a "multiple employer plan" within the meaning of Section 413(c) of the Code or Sections 302 4063, 4064 or 303 4066 of ERISA that ERISA, (E) is currently in effect; and (vi) there are no funding-based benefit limitations (a "multiple employer welfare arrangement" within the meaning of Section 436 3(40) of ERISA, (F) is a "voluntary employees beneficiary association" within the meaning of Section 501(c)(9) of the Code, or (G) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for provides post-termination health, medical employment health or welfare benefits (other welfare benefits. Except as set forth on Section 3.10(c) than COBRA continuation coverage at the sole expense of the Company Disclosure Schedule, applicable individual).
(i) Neither the execution of this Agreement nor the consummation of the Transactions will notwill, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company Participant to severance pay, unemployment any compensation or any other payment, benefit or (ii) accelerate the time of payment or vesting, or trigger any payment or funding or increase the amount amount, of any compensation due or benefit under any such employee Company Plan or officer. Except as set forth on (ii) result in "excess parachute payments" within the meaning of Section 3.10(d280G(b) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Neither the Company nor its Subsidiaries has any obligation to gross up, indemnify, or otherwise reimburse any Person for any excise taxes, interest, or penalties incurred under Section 3.10 constitutes 409A or Section 4999 of the sole Code.
(j) With respect to the Company Plans, no material claim, action, suit, audit, assessment by a Governmental Authority, arbitration, proceeding or investigation (other than routine claims for benefits in the ordinary course), is pending or, to the Knowledge of the Company, threatened, and exclusive representation and warranty to the Knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such actions, suits or claims, audits or investigations.
(k) There are no facts or circumstances that would or could reasonably be likely to, give rise to any liability (whether actual or contingent, direct or indirect, known or unknown), on a "controlled group" basis (as defined below), with respect to any employee benefit plan sponsored, maintained or contributed to, or required to be contributed to, by any other Person that, together with any of the Company regarding pension and employee benefit liabilitiesor its Subsidiaries, obligationsis treated as a single employer under Section 414(b), (c), (m) or compliance with Laws.(o) of the Code or Section 4001 of ERISA (each such Person, an "ERISA Affiliate", and, collectively, the "controlled group")
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a3.12(a) of the Company Disclosure Schedule Schedules sets forth a complete and accurate listlist of all Benefit Plans that are sponsored, maintained, contributed to or participated in by the Company or its Subsidiaries or to which the Company or any Subsidiary is a party or has any direct or indirect liability. Except as set forth in Section 3.12(a) of the date of this AgreementDisclosure Schedules, of each neither the Company nor its Subsidiaries has any express or implied commitment to create, incur liability with respect to or cause to exist any Benefit Plan or to modify any Benefit Plan in a manner that would result in a material Company Plan. increase in expense or funding obligations, other than as required by Law.
(b) The Company has made available to Parent correct and complete copies of the Buyer the following documents with respect to each Benefit Plan, as applicable: (ai) the current a complete and accurate copy of the governing plan document documents for each material Company Plan (orwritten Benefit Plan, or if such Company Plan is not in writingunwritten, a written description summary of each such Benefit Plan; (ii) the material terms thereof), most recent IRS favorable determination or opinion letter; (biii) the most recent annual reports on Form report (Series 5500 and all schedules thereto) required to be filed with under ERISA or the Department of Labor with respect to each Company Plan Code for the past three (if any such report was required), 3) plan years; (civ) the most recent summary plan description together with any summaries of material modifications thereto; and (v) all discrimination and qualification tests for the most the three (3) most recent plan years.
(c) All of the Benefit Plans listed in Section 3.12(a) of the Disclosure Schedules (i) comply in form and operation in all material respects with all applicable requirements of Law and (ii) have, for the past six (6) years, been administered in compliance in all material respects with their terms and in all material respects with all applicable requirements of Law, and the Company and its Subsidiaries have materially satisfied all of their statutory, regulatory and contractual obligations with respect to each such Benefit Plan. All material Company Plan for which reports required to be filed with any Governmental Authority in connection with such summary plan description is required, Benefit Plans have been filed in accordance with all material requirements of Law.
(d) each trust agreement relating to any Company PlanAll Benefit Plans that are employee pension benefit plans, (eas defined in Section 3(2) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, and that are intended to comply with Section 401(a) of the Code and all other applicable lawsare the subject of a favorable determination letter from the IRS (or can rely on an opinion or advisory letter obtained by a prototype or volume submitter plan sponsor), except where and, to the Company’s Knowledge, no event has occurred since the date of the last such noncompliance determination letter or pre-approval letter that would not reasonably be expected to adversely affect the qualification of any such Benefit Plan under Section 401(a) of the Code.
(e) To the Company’s Knowledge, there have a not been any non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any of the Benefit Plans. Neither the Company Material Adverse Effect. There nor any Subsidiary has incurred any material liability for any excise tax arising under the Code with respect to any Benefit Plan.
(f) To the Company’s Knowledge, there are no actions, suits or claims pending or, to the Knowledge of the Company, threatened claims involving any Benefit Plans (other than routine claims for benefits in the ordinary course) with respect to any Company Plansand qualified domestic relations, nor is any Company medical or child support orders thereunder, and no Benefit Plan under has, within the three (and the Company has received no notice that there is any threatened3) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, years prior to the Knowledge of the CompanyClosing Date, such Company Pension Plan qualifies in all material respects under Section 401(abeen subject to a formal audit by a Governmental Authority.
(g) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on in Section 3.10(b3.12(g) of the Company Disclosure ScheduleSchedules, neither none of the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, Benefit Plans is a multiemployer plan (as defined in Section 3(37) of ERISA) or a defined benefit plan subject to section 302 or Title IV (as defined in Section 3(35) of ERISA or section 412 of the Code. With respect to each Company Pension Plan ERISA).
(h) Except as set forth on in Section 3.10(b3.12(h) of the Disclosure Schedules, no Benefit Plan that is an employee welfare benefit plan promises or provides benefits to any former employee of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment Subsidiary except as required under by Section 412 4980B of the Code or Section 303 of ERISA has been made before comparable state Law.
(i) Except to the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as extent set forth on in Section 3.10(c3.12(i) of the Company Disclosure ScheduleSchedules, neither the execution or delivery of this Agreement nor the consummation of the Transactions transactions contemplated hereby will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle result in any employee payment becoming due to any current or former employee, consultant, officer, director, manager, trustee or independent contractor of the Company or its Subsidiaries, or entitle any of the forgoing Persons to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of payments or compensation due any such employee Person, (iii) increase any benefits otherwise payable under any Benefit Plan, (iv) result in the acceleration of payment or officer. Except vesting of any such benefits under such Benefit Plan, (v) result in any “excess parachute payment” as set forth on defined in Section 3.10(d280G(b)(1) of the Company Disclosure ScheduleCode (an “Excess Parachute Payment”), no amounts payable under or (vi) limit the right of the Company Plans will fail to merge, amend, or terminate any Benefit Plan.
(j) Each Benefit Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder. No payment to be deductible for federal income tax purposes by virtue made under any Benefit Plan is, or to the Company’s Knowledge, will be, subject to the penalties of section 280G Section 409A(a)(1) of the Code. This Section 3.10 constitutes .
(k) The Company has complied in all material respects with the sole applicable requirements of the Affordable Care Act and exclusive representation any federal regulations issued thereunder, including (i) the preparation and warranty timely annual distribution of a Summary of Benefits and Coverage document (and any required amendments thereto); (ii) proper classification of all workers who are common law employees within the meaning of the Company regarding pension Affordable Care Act and employee benefit liabilitiesSection 4980H of the Code; (iii) timely and accurate filing of IRS Forms 1094-C and 1095-C, obligations, or compliance with Lawsas required by Section 6065 of the Code; and (iv) timely and accurate filing of IRS Form 720 to report and pay the trust fund tax imposed under Section 4376 of the Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (Stewart Information Services Corp)
Employee Benefits Matters. (a) Section 3.10(a3.12(a)(i) of the Company Disclosure Schedule sets forth contains a complete and accurate list, as correct list of all Benefit Plans and all Benefit Agreements. Section 3.12(a)(ii) of the date Company Disclosure Schedule contains a complete and correct list of this Agreement(i) all Benefit Agreements between any Seller Entity, of each material Company Planon the one hand, and any Participant, on the other hand, and (ii) all Benefit Plans sponsored, maintained or otherwise contributed to by any Seller Entity (such plans and agreements, collectively, the “Seller Benefit Arrangements”). The Company has made available to Parent Buyer complete and correct and complete copies of each Benefit Plan and each Benefit Agreement, including any amendments thereto, and, with respect to each material Benefit Plan and Benefit Agreement, (ai) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the two most recent annual reports on IRS Form 5500 (with accompanying schedules and attachments) required to be filed, if any, or such similar reports, statements, information returns or material correspondence required to be filed with the Department of Labor or delivered to any Governmental Authority, if any, with respect to each Company Plan (if any such report was required)Benefit Plan, (cii) the most recent summary plan description (if any), and any summary of material modifications, prepared for each material Company Plan for which such summary plan description is requiredBenefit Plan, (diii) each trust agreement and group annuity or insurance Contract relating to the funding or payment of benefits under any Company Benefit Plan, (eiv) the most recent audited financial statement and the actuarial IRS determination or qualification letter or similar document issued by any Governmental Authority for each Benefit Plan intended to qualify for favorable Tax treatment or other valuation report prepared for the most recently completed plan year with respect thereto status, any pending application therefor and a complete and accurate list of all amendments to any such Benefit Plan as to which a favorable determination or qualification letter has not yet been received and (fv) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Planthe two most recent actuarial valuations for each Benefit Plan (if any). Each Company Benefit Plan is and Benefit Agreement has in all material respects been administered in compliance with its terms terms. The Company and the its Subsidiaries and each Benefit Plan and Benefit Agreement are in compliance in all material respects with all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Code and all other applicable lawsLaws and the terms of all collective bargaining agreements. Each Benefit Plan intended to be Tax-qualified under the Code has been the subject of a favorable determination or opinion letter from the Internal Revenue Service (the “IRS”), except where to the effect that such noncompliance Benefit Plan is qualified and exempt from United States Federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code; no such determination letter has been revoked (nor, to the Knowledge of the Company, has revocation been threatened) nor has any event occurred since the date of the most recent determination letter or application therefor relating to any such Benefit Plan that would not reasonably be expected to adversely affect the qualification of such Benefit Plan.
(b) Neither the Company nor any of its Subsidiaries sponsors, maintains, contributes to (or has been obligated to sponsor, maintain or contribute to) or has any actual or contingent liability under any, “defined benefit plan” (as defined in Section 3(35) of ERISA), “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA) or other plan that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA or any similar Law.
(c) No Benefit Plan that is an employee welfare benefit plan, whether or not subject to ERISA, provides benefits after termination of employment except as required by Section 4980B(f) of the Code or any similar state statute.
(d) None of the employees of the Company or any of its Subsidiaries is a member of, represented by or otherwise subject to any (i) labor union, works council or similar organization or (ii) collective bargaining agreement, industry-wide collective bargaining agreement or any similar collective agreement, in each case with respect to such employee’s employment by the Company or such Subsidiary, and the Company and its Subsidiaries do not have a Company Material Adverse Effectany obligation (including to inform or consult with any such employees or their representatives in respect of the transactions contemplated by this Agreement) with respect to any such organization or agreement. There are no Since the date of its incorporation or organization, there has been no, and there currently is no, labor strike, dispute, request for representation, union organization attempt, slowdown or stoppage actually pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and against or affecting the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” of its Subsidiaries.
(as defined in Section 3(3e) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d3.12(e) of the Company Disclosure Schedule, no amounts payable under Participant will be entitled to (i)(A) any severance, separation, change of control, termination, bonus or other additional compensation or benefits, or (B) any acceleration of the time of payment or vesting of any compensation or benefits or the forgiveness of Indebtedness owed by such Participant, in each case, as a result of the transactions contemplated by this Agreement (alone or in combination with any other event) or (ii) any compensation or benefits related to, or contingent upon, or the value of which will be calculated on the basis of, any of the transactions contemplated by this Agreement (alone or in combination with any other event). The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (alone or in combination with any other event) and compliance by the Company Plans with the provisions hereof do not and will fail not require the funding (whether through a grantor trust or otherwise) of any Benefit Plan or Benefit Agreement (other than the Change of Control Payments that will be forth in the schedule required to be deductible for federal income tax purposes delivered by virtue the Company under Section 7.11).
(f) No Person is entitled to any gross-up, make-whole or other additional payment from the Company or any of section 280G its Subsidiaries in respect of any Tax (including Federal, state, local and foreign income, excise and other Taxes (including Taxes imposed under Section 4999 or 409A of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty )) or interest or penalty related thereto.
(g) The consummation of the Company regarding pension Equity Purchase will not constitute a “change in the ownership or effective control” or “change in the ownership of a substantial portion of the assets”, in each case, of any corporation (within the meaning of Section 280G(b)(2)(A)(i) of the Code), including any direct and employee benefit liabilities, obligations, or compliance with Lawsindirect owners of the Company.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a3.11(a) of the Company Disclosure Schedule sets forth contains a complete true and accurate listcorrect list of each Company Plan, as including, by country, each Company Plan maintained or contributed to by the Company and its Subsidiaries under the Laws or applicable custom or rule of the date relevant jurisdiction outside of this Agreementthe United States, other than any government sponsored pension, insurance or welfare program (each, a "Foreign Plan"). Except for the Foreign Plans listed in Section 3.11(a)(1) of each material Company Plan. The the Disclosure Schedule, the Company has delivered or made available to Parent Purchaser true and correct and complete copies of of: (ai) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereofincluding all amendments thereto), ; (bii) the three most recent annual reports on Form 5500 required to be and all schedules thereto filed with the Department of Labor with respect to each Company Plan Plan, to the extent applicable; (if any such report was required), (ciii) the most recent summary plan description description, summary of material modifications and plan prospectus for each material Company Plan for which such summary plan description is requiredPlan, to the extent applicable; (div) each current trust agreement agreement, insurance contract or policy, group annuity contract and any other funding arrangement relating to any Company Plan, to the extent applicable; (ev) the most recent audited actuarial report, financial statement or valuation report, to the extent applicable; (vi) a current IRS favorable opinion or determination letter, to the extent applicable; (vii) all material correspondence to or from any Governmental Authority relating to any Company Plan during the prior three years; and the actuarial or other valuation report prepared (viii) all discrimination tests for each Company Plan for the three most recently completed recent plan year with respect thereto years, to the extent applicable.
(b) Section 3.11(b) of the Disclosure Schedule contains a true and correct list, as of the date hereof, of each material written employment, consulting, retention, change in control, severance or termination agreement, arrangement or understanding between the Company or its Subsidiaries and any individual current or former (f) if the Company or any of its Subsidiaries has any material and non-routine correspondence with a Governmental Authority regarding Liability thereunder that will survive the Closing) employee, officer or director of the Company or its Subsidiaries (excluding any pending auditagreement, investigationarrangement or understanding entered into by, claim or dispute under any Company Plan. Each Company Plan is in compliance with at the direction of, Purchaser or its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance Affiliates).
(c) Except as would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, each Company Plan complies with its terms and with applicable Laws, including ERISA and the Code.
(d) With respect to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; , (vi) all contributions required to have been made by the Company or any of its Subsidiaries under the terms of such Company Plan, any related insurance contract or any applicable Law have been timely made, (ii) there are no such plan has applied actions, suits or claims pending or, to the Company's Knowledge, threatened that are material to the Company and its Subsidiaries taken as a whole other than routine claims for benefits, including any audit or received a waiver investigation by any Governmental Authority, and (iii) there have been no "prohibited transactions" (as that term is defined in Section 406 of ERISA or Section 4975 of the minimum funding standards Code) that would result in material liability to the Company and its Subsidiaries. None of the Company Plans obligates the Company or an extension its Subsidiaries to provide a current or former employee (or any dependent thereof) any material life insurance or material medical or health benefits after his or her termination of employment with the Company or any amortization period of its Subsidiaries, other than as required under Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code or any similar state or local Laws.
(e) Each Company Plan intended to be "qualified" within the meaning of Section 401(a) of the Code has either received a currently effective determination letter from the IRS or may rely on an opinion letter issued by the IRS, and, to the Company's Knowledge, no condition exists that would reasonably be expected to cause the revocation of such determination or opinion letter.
(f) None of the Company Plans, and neither the Company nor any of its Subsidiaries has ever maintained or had an obligation to contribute to (i) a "single employer plan" (as such term is defined in Section 4001(a)(15) of ERISA) subject to Section 412 of the Code or Sections 302 Title IV of ERISA, (ii) a "multiple employer plan" or 303 of ERISA that "multiple employer welfare arrangement" (as such terms are defined in ERISA), (iii) a multiemployer plan (as such term is currently defined in effect; and ERISA) or (viiv) there are no funding-based benefit limitations (within the meaning of a voluntary employees' beneficiary association under Section 436 501(c)(9) of the Code. The Company and its Subsidiaries have not incurred and are not reasonably expected to incur any material Controlled Group Liability from any entity other than the Company and its Subsidiaries.
(g) currently With respect to any Company Plan, there is no Action pending or, to the Company's Knowledge, threatened with or by the IRS, the U.S. Department of Labor or any other Governmental Authority (other than routine claims for benefits).
(h) With respect to the Company Plans, neither the execution and delivery of this Agreement nor the consummation of the Transactions will (excluding any agreement, contract, arrangement or plan entered into by, or at the direction of Purchaser or its Affiliates) (i) entitle any current or former employee, director or consultant of the Company or its Subsidiaries to any payment or benefit (or result in effectthe funding of any such payment or benefit) or result in any forgiveness of indebtedness with respect to any such persons, in each case, from the Company or its Subsidiaries, (ii) increase the amount of any compensation, equity award or other benefits otherwise payable by the Company or its Subsidiaries or (iii) result in the acceleration of the time of payment, funding or vesting of any compensation, equity award or other benefits from the Company or its Subsidiaries except as required under Section 411(d)(3) of the Code.
(i) Each Company Plan that is a "nonqualified deferred compensation plan" subject to Section 409A of the Code has been documented and operated in material compliance with Section 409A of the Code and any proposed and formal guidance under Section 409A of the Code. Other than No amounts paid or payable (individually or collectively and whether in cash, capital stock of the Company or other property) under any of the Company Plans or any other contract, agreement or arrangement with respect to which the Company or its Subsidiaries may have any liability could fail to be deductible for U.S. federal income tax purposes by virtue of Sections 280G of the Code on account of the Transactions; provided, however, that this Section 3.11(i) shall not apply to any arrangements entered into at the direction of Purchaser or between Purchaser and its affiliates, on the one hand, and any Person, on the other hand ("Purchaser Arrangements"), so that, for the avoidance of doubt, compliance with this Section 3.11(i) shall be determined as if such Purchaser Arrangements had not been entered into. No Company Plan provides for indemnification or a "gross up" payment for any Taxes due because of the imposition of any excise Tax on such a payment to the individual pursuant to Sections 280G or 409A of the Code.
(j) With respect to each Foreign Plan, except as would not reasonably be expected to have a Company Material Adverse Effect: (i) such Foreign Plan is in compliance with the applicable provisions of the Laws of each jurisdiction in which such Foreign Plan is established; (ii) all contributions to, and payments from, such Foreign Plan which may have been required to be made in accordance with the terms of such Foreign Plan, and, when applicable, the Laws of the jurisdiction in which such Foreign Plan is maintained, have been timely made, and all such contributions to such Foreign Plan, and all payments under such Foreign Plan, for any period ending before the Closing Date that are not yet, but will be, required to be made, are reflected as an accrued liability on the applicable financial records and statements; (iii) the Company and its Subsidiaries have reserved complied with all applicable reporting and notice requirements, and such Foreign Plan has obtained from the right and power Governmental Authority having jurisdiction with respect to terminatesuch Foreign Plan any required determinations, suspendif any, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) such Foreign Plan is in compliance with the Laws of the relevant jurisdiction if such determinations are required in order to give effect to such Foreign Plan; (iv) such Foreign Plan has been administered at all times in accordance with its terms and applicable Laws; (v) there are no pending investigations by any Governmental Authority involving such Foreign Plan, and there are no pending claims (except for claims for benefits payable in the normal operation of such Foreign Plan), suits or proceedings against such Foreign Plan or asserting any rights or claims to benefits under such Foreign Plan; (vi) except as required by applicable Laws, no condition exists that would prevent the Company Disclosure Scheduleand its Subsidiaries from terminating or amending any Foreign Plan at any time for any reason in accordance with the terms of each such Foreign Plan without the payment of any fees, costs or expenses (other than payment of the benefit accrued on the applicable balance sheet and any normal and reasonable expenses typically incurred in a termination event); and (vii) the consummation of the Transactions contemplated transactions will not, either alone not by itself create or otherwise result in combination any liability with another event, except as expressly provided respect to such Foreign Plan. No Foreign Plan has unfunded liabilities that will not be offset by insurance or that are not fully accrued on the applicable financial statements.
(k) The Company and its Subsidiaries have timely made in this Agreement, (i) entitle any employee of all material respects the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail contributions required to be deductible for federal income tax purposes made by virtue of section 280G of them with respect to employees located outside the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, United States to any plan that is sponsored by or compliance with Lawsto which contributions are mandated by a Governmental Authority.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a3.11(a) of the Company Disclosure Schedule sets forth a true, correct and complete and accurate list, as of the date of this Agreement, list of each material Company Plan. The With respect to each material Company has Plan, the Company has, to the extent applicable, furnished or made available to Parent true, correct and complete copies of of: (ai) the current plan document for each material Company Plan (oror to the extent that no such copies exist, if such Company Plan is not in writing, a written an accurate description of the material terms thereof), (bii) the most recent annual reports on Form 5500 and attached schedules required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required), (ciii) the most recent summary plan description for each material Company Plan for which such summary plan description is required, and (div) each trust agreement relating to any Company Plan, .
(eb) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan has been established, administered, funded or accrued for, and operated, and is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable lawsLaws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There Impact.
(c) With respect to each Company Plan, (i) there are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. Impact, (ii) to the Knowledge of the Company no facts or circumstances exist that would reasonably be expected to give rise to any such claim, and (iii) to the Knowledge of the Company no Company Plan is currently under investigation or audit by any Governmental Authority.
(d) All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor therefor, or are in the form of a prototype or volume submitter plan that is the subject of a favorable opinion letter from the IRS and, to the Knowledge of the Company, there is no fact or circumstance that would reasonably be expected to cause the loss of such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationqualification. The Company has furnished or made available to Parent a correct and complete copy of the most recent determination or opinion letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b.
(e) of the Company Disclosure Schedule, neither Neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor or has or would reasonably expect to have any liability with respect to, to (i) a multiemployer plan (as defined in Section 3(37) of ERISA or 4001(a)(3) of ERISA), (ii) or a plan subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or (iii) a “multiple employer welfare arrangement” as defined in Section 303 3(40) of ERISA ERISA. To the Knowledge of the Company, no event has been made before occurred and no condition exists that would subject the applicable due date Company or any of its Subsidiaries to any liability in respect of any such plans.
(f) No Company Plan provides any post-employment health, medical, or life insurance for any current or former employee or individual service provider, except as would not reasonably may be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver required under COBRA, and at the expense of the minimum funding standards employee or an extension of any amortization period within the meaning of Section 412 of the Code former employee or Sections 302 or 303 of ERISA that is currently in effect; and individual service provider.
(vig) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c3.11(g) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any current or former employee or service provider of the Company to severance pay, unemployment compensation pay or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such current or former employee or officer. Except as set forth on Section 3.10(dservice provider, (iii) result in an increase in the amount of any payment, compensation or benefit due to any current or former employee or service provider, and (iv) result in any funding (through a grantor trust or otherwise) of the Company Disclosure Schedule, no any compensation or benefit due to any current or former employee or service provider. No amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the Code. This The parties acknowledge that this Section 3.10 constitutes 3.11(g) shall not apply to any arrangements entered into at the sole discretion of Parent or between Parent and exclusive representation its affiliates, on the other hand, and warranty a disqualified individual on the other hand (“Parent Arrangements”) so that, for the avoidance of doubt, compliance with this Section 3.11(g) shall be determined as if such Parent Arrangements had not been entered into.
(h) Except as would not reasonably be expected to have a Company Material Impact, any “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of the Code and the guidance thereunder) under which the Company regarding pension or any of its Subsidiaries makes, is obligated to make or promises to make payment complies, in both form and operation, in all material respects with the requirements of Section 409A of the Code and the guidance thereunder.
(i) With respect to each Non-U.S. Plan, including any such Non-U.S. Plan required to be maintained or contributed to by applicable Law, except as would not reasonably be expected to have a Company Material Impact, (i) all employer and employee contributions to each Non-U.S. Plan required by applicable Law or by the terms of such Non-U.S. Plan have been made, or, if applicable, accrued in accordance with normal accounting practices, (ii) the fair market value of the assets of each funded Non-U.S. Plan, the liability of each insurer for any Non-U.S. Plan funded through insurance or the book reserve established for any Non-U.S. Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit liabilities, obligations, or compliance as of the date hereof, with Lawsrespect to all current and former participants in such Non-U.S. Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Non-U.S. Plan, and (iii) each Non-U.S. Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedule sets forth a complete lists each material (i) “employee benefit plan” (within the meaning of Section 3(3) of ERISA), whether or not subject to ERISA, (ii) severance, change in control and accurate listemployment plan, as or other contracts or arrangements, and (iii) vacation, incentive, bonus, stock option, stock purchase, and restricted stock plan, program or policy sponsored by the Company in which employees of the date of this AgreementCompany participate (collectively, of each material Company Planthe “Benefit Plans”). The Company has made available to Parent correct Buyer a true and complete copies copy of (a) the current each such Benefit Plan document, policy or summary plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), .
(b) Except as set forth in Section 4.10(b) of the most recent annual reports on Form 5500 required to be filed with Company Disclosure Schedule, the Department of Labor with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is Benefit Plans are in compliance in all material respects with its terms and the all applicable provisions requirements of ERISA, the Code (including all applicable aspects of the Patient Protection and Affordable Care Act, as amended, and the Health Insurance Portability and Accountability Act of 1996, as amended), and other Applicable Laws and have been administered, in all other applicable material respects, in accordance with their terms and such laws. Each Benefit Plan that constitutes a group health plan subject to Code Section 4980H is, or will be, prepared to determine and offer coverage to full-time employees as required to avoid the excise taxes under Code Section 4980H. Each Benefit Plan that is intended to be qualified within the meaning of Section 401 of the Code has received a favorable IRS determination letter or opinion letter that it is qualified under Section 401(a) of the Code (“Qualified Benefit Plan”) that has not been revoked, and, except where such noncompliance as set forth in Section 4.10(b) of the Company Disclosure Schedule, to the Knowledge of the Company, nothing has occurred that would not reasonably be expected to have adversely affect the qualified status of any Qualified Benefit Plan or related trust. Each trust created under a Qualified Benefit Plan has been determined to be exempt from Tax under Section 501(a) of the Code and except as set forth in Section 4.10(b) of the Company Material Adverse EffectDisclosure Schedule, the Company is not aware of any circumstances that could result in the revocation of the exemption. There Except as set forth in Section 4.10(b) of the Company Disclosure Schedule, the Company has not taken any action to take corrective action or make a filing under any voluntary correction program of the IRS, the U.S. Department of Labor or any other Governmental Authority with respect to any Benefit Plan or Qualified Benefit Plan, and there are no material plan defects that would qualify for correction under any such program.
(c) Except as set forth in Section 4.10(c) of the Company Disclosure Schedule or for ordinary and usual claims for benefits by participants and beneficiaries, there are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) Proceedings with respect to any Company PlansBenefit Plan.
(d) No Tax Liabilities have arisen and are currently unpaid in relation to a violation of any applicable Benefit Plan of Section 409A of the Code, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be Tax Liability expected to have arise in connection with any payment as a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) result of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if anytransactions contemplated by this Agreement. Except as set forth on in Section 3.10(b4.10(d) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan all Benefit Plans subject to section 302 or Title IV Section 409A of ERISA or section 412 the Code have been amended to conform to Section 409A prior to the deadline provided in Internal Revenue Service Notice 2010-6 and at all times after December 31, 2008 have complied, both in form and operation, in all material respects with the requirements of Section 409A of the Code and the final regulations and other applicable guidance. No Benefit Plan provides for the reimbursement of Taxes under Section 409A of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b.
(e) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on in Section 3.10(c4.10(e) of the Company Disclosure Schedule, the consummation Company does not provide any medical benefits under any employee benefit plan to employees or former employees after retirement or other severance from employment other than as required under Section 4980B of the Transactions will notCode.
(f) The Company has complied in all material respects with the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, either alone as amended (“COBRA”).
(g) Neither the Company, any ERISA Affiliate of the Company nor any fiduciary of a Benefit Plan has engaged in a nonexempt “prohibited transaction” (described in Code Section 4975 or in combination with another event, except as expressly provided in this Agreement, (iSection 406 of ERISA) entitle that would subject the Company or any employee ERISA Affiliate of the Company to severance pay, unemployment compensation a tax on prohibited transactions imposed by Section 502(i) of ERISA or any other payment, or Section 4975 of the Code.
(iih) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on in Section 3.10(d4.10(h) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail has never maintained or been obligated to be deductible for federal income tax purposes by virtue contribute to (i) a Benefit Plan that is subject to Title IV or Section 302 of section 280G ERISA or Section 412 or 4971 of the Code. This , (ii) a Benefit Plan that is a “multiemployer plan” within the meaning of Section 3.10 constitutes 3(37) of ERISA, or (iii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the sole meaning of Section 4063 or 4064 of ERISA or Section 413 of the Code (a “Multiple Employer Plan”), and exclusive representation and warranty neither the Company nor any ERISA Affiliate of the Company regarding pension and employee benefit liabilities, obligations, has incurred any withdrawal liability to a multiemployer plan as a result of a complete or compliance with Lawspartial withdrawal from such plan under Section 4063 or Section 4064 of ERISA.
(i) Set forth in Section 4.10(i) of the Company Disclosure Schedule is a list of all outstanding loans by the Company to any of its employees.
Appears in 1 contract
Employee Benefits Matters. Section 3.10(aWithout limiting the generality of the foregoing, except as otherwise expressly agreed in writing by the Purchaser, the Company shall not, and shall cause its Subsidiaries not to, take any of the following actions:
(i) enter into any new Employment Agreement unless such agreement (x) is in the ordinary course consistent with past practice, (y) is terminable at will without severance or (z) does not obligate the Company or any Subsidiary to provide compensation and/or benefits in excess of $120,000 per year unless an offer letter is outstanding, which offer letter is disclosed on Schedule 3.16, or amend any existing Employment Agreement or hire any executive officer of the Company Disclosure Schedule sets forth a complete and accurate listor any of its Subsidiaries;
(ii) adopt any new Company Benefit Plan or, except as may be required by applicable law, amend any existing Company Benefit Plan; provided, however, that the Company's 1999 Stock Option Plan may be amended to increase the stock options available for grant thereunder, not to exceed an amount in excess of 2,000,000 options in the aggregate;
(iii) except in the ordinary course of business consistent with past practice, grant any stock options or other equity-based compensation to any employee or director of the Company or any of its Subsidiaries; provided, however, that the amount of Shares subject to options or other equity-based compensation awards permitted to be granted pursuant to this Section 5.6(iii) shall not exceed 90,000 (such amount to be increased by the amount of any Company Options cancelled after the date hereof);
(iv) increase the salaries, wages, or other compensation or benefits of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description any employee or director of the material terms thereof)Company or any of its Subsidiaries, (b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor except for such increases with respect to each Company Plan (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would employees who are not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge officers of the Company, threatened claims (other than claims for benefits Company or any of its Subsidiaries that are in the ordinary course) course of business consistent with respect to any Company Plans, nor is any Company Plan under (past practice and do not result in an aggregate increase in the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department annual cost of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) compensation and benefits for employees of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved of more than five percent (5%) over such annual costs as in effect on the right and power date hereof; or
(v) agree to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) do any of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with Lawsforegoing.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (New Mountain Partners Lp)
Employee Benefits Matters. (a) Section 3.10(a4.10(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of Letter lists each material Company Plan. The With respect to each Company Plan, the Company has made available to Parent correct and complete copies of (a) the current plan document for each material Company Plan (orand, if such Company Plan is not in writing, a written description of the material terms thereof)as applicable, (bi) the most recent annual reports report on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan (if any such report was required)5500, (cii) the most recent summary plan description and any summary of material modifications thereof, (iii) the governing document for each material Company Plan for which such summary plan description is requiredtrust or other funding vehicle, (d) each trust agreement relating to any Company Plan, (eiv) the most recent audited financial statement and the actuarial IRS determination or other valuation report prepared for the most recently completed plan year opinion letter issued with respect thereto to each Company Plan that is intended to be qualified under Section 401(a) of the Code, and (fv) any all material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. in the last four years.
(b) Each Company Plan is has been maintained, funded and administered in compliance in all material respects with its terms and with the applicable provisions of ERISA, the Code and all other applicable lawsLaws. With respect to each Company Plan, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There there are no pending or, to the Knowledge of the Company, threatened claims (other than routine claims for benefits in the ordinary course) with respect to any Company Plansbenefits), nor is any Company Plan under (and the Company has received no notice audits or regulatory investigations that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have result in a material liability to the Company Material Adverse Effectand its Subsidiaries (taken as a whole). All Each Company Plans Plan that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are is intended to be tax qualified under Section 401(a) of the Code (each, is covered by a “Company Pension Plan”) have received a current favorable determination or opinion letter from the IRS or has filed a timely application therefor and, to the Knowledge Company’s Knowledge, no circumstance exists that would be reasonably expected to result in the revocation of any such determination or opinion letter. All contributions, premium deposits or other payments required to be made to any Company Employee Plan have been timely made, and all such contributions, premium deposits or other payments that have accrued, but have not been paid because they are not yet due, are included as a current liability on the Company, such ’s financial statements.
(c) No Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan is subject to section 302 or Title IV or Section 302 of ERISA or section Section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of Neither the Company Disclosure Schedulenor any of its Subsidiaries has in the past six (6) years sponsored or maintained any plan subject to, (i) no proceeding has been initiated nor have they incurred or reasonably expect to terminate such plan under Sections 4041 incur any direct or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in indirect obligation or liability under, Title IV or Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 302 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected with respect to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations “employee pension plan” (within the meaning of Section 436 3(2) of ERISA) or “multiemployer plan” (within the meaning of Section 3(37) of ERISA). No Company Plan provides post-employment health care coverage to any current or former employee or service provider or any dependents thereof except as specifically required by applicable Laws.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A of the Code) currently complies in effectall material respects with the requirements of Section 409A of the Code and applicable IRS guidance promulgated thereunder. Other than as would not reasonably be expected to have a Company Material Adverse Effect, Neither the Company and nor any of its Subsidiaries have reserved has any obligation to provide any indemnity or gross-up payment to any individual with respect to any income Tax, additional Tax, excise Tax or interest charge imposed pursuant to Section 409A or 4999 of the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical Code.
(e) Except as otherwise contemplated by this Agreement or other welfare benefits. Except as set forth on in Section 3.10(c4.10(e) of the Company Disclosure ScheduleLetter, neither the execution of this Agreement nor the consummation of the Transactions will notwill, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any current or former employee or other service provider of the Company or any of its Subsidiaries to severance pay, unemployment compensation pay or any other paymentadditional compensation or benefits (including change in control, golden parachute, retention bonus or other similar payment under any Company Plan), (ii) accelerate the time of payment payment, funding or vestingvesting of any payment, distribution, benefits or equity award to or under any Company Plan, (iii) increase the amount of any compensation due or benefit payable by the Company or any such of its Subsidiaries under any Company Plan, (iv) result in any forgiveness of Indebtedness with respect to any employee or officer. Except as set forth on Section 3.10(d) other service provider of the Company Disclosure Scheduleor any of its Subsidiaries, no amounts payable trigger any funding obligation under any Company Plan or impose any restrictions or limitations on the Company’s rights (or any successor of the Company’s rights) to administer, amend or terminate any Company Plan, or (v) entitle any employee, director or other service provider to any payment from the Company Plans will fail to or a Subsidiary that would be deductible for federal income tax purposes nondeductible by virtue reason of section Section 280G of the Code. This Notwithstanding any other provisions of this Agreement, this Section 3.10 4.10, together with Section 4.16, constitutes the sole and exclusive representation and warranty of the Company regarding pension relating to any Company Plans and any other employee fringe or employee benefit liabilities, liabilities or obligations, or including compliance with LawsLaws relating thereto.
Appears in 1 contract
Employee Benefits Matters. (a) Section 3.10(a4.8(a) of the Company Alpha Disclosure Schedule sets forth contains a true, correct and complete and accurate list, as list of all material Alpha Plans in effect on the date hereof. Prior to the date of this Agreement, of each material Company Plan. The Company Alpha has provided or made available to Parent Foundation true, correct and complete copies as in effect on the date hereof of each of the following, to the extent requested by Foundation prior to the date hereof, as applicable, with respect to each such Alpha Plan: (ai) the current plan document for each material Company Plan (or agreement or, if such Company with respect to any Alpha Plan that is not in writing, a written description of the material terms thereof), ; (bii) any summary plan description required to be furnished to participants pursuant to ERISA; (iii) the most recent annual reports on Form 5500 required report, actuarial report and/or financial report, if any; (iv) all amendments or modifications to be filed with any such documents; (v) the Department of Labor most recent determination letter received from the Internal Revenue Service with respect to each Company Alpha Plan that is intended to be a “qualified plan” under Section 401 of the Code; and (if any such report was required), (cvi) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredrequired Internal Revenue Service Form 5500, including all schedules thereto.
(db) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance Except as would not have or reasonably be expected to have a Company have, individually or in the aggregate, an Alpha Material Adverse Effect. There , with respect to each Alpha Plan, (i) all expenses, contributions, premiums or payments required to be made to, under or with respect to such Alpha Plan have been timely made and all amounts properly accrued to date or as of the Effective Time as liabilities of Alpha or any of its Subsidiaries which are no pending ornot yet due have been properly recorded on the books of Alpha and, to the Knowledge extent required by GAAP, adequate reserves are reflected on the financial statements of the CompanyAlpha, threatened claims (other than claims for benefits in the ordinary courseii) with respect to any Company Plans, nor each such Alpha Plan which is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are an “employee pension plansbenefit plan” (as defined in Section 3(33(2) of ERISA) that are and intended to be tax qualified qualify under Section 401(a) 401 of the Code (each, a “Company Pension Plan”) have has received a favorable determination letter from the IRS or has filed a timely application therefor Internal Revenue Service with respect to such qualification, and, to the Knowledge knowledge of Alpha, nothing has occurred since the Companydate of such letter that has affected, or would reasonably be expected to adversely affect, such Company Pension qualification, (iii) with respect to any Alpha Plan qualifies maintained outside the United States, all applicable foreign qualifications or registration requirements have been satisfied in all material respects, except where any failure to comply would not result in any material liability to Alpha or its Subsidiaries, (iv) there are no Proceedings pending (other than routine claims for benefits) or, to the knowledge of Alpha, threatened or anticipated with respect to such Alpha Plan, any fiduciaries of such Alpha Plan with respect to their duties to any Alpha Plan, or against the assets of such Alpha Plan or any trust maintained in connection with such Alpha Plan, (v) such Alpha Plan has been operated and administered in compliance in all material respects under Section 401(awith its terms and all applicable Laws and regulations, including ERISA and the Code, and (vi) there is not now, and to the knowledge of Alpha there are no existing circumstances that would reasonably be expected to give rise to, any requirement for the Code in operation. The Company has made available to Parent a correct and complete copy posting of the most recent determination letter received security with respect to each Company Pension Planan Alpha Plan or the imposition of any pledge, as well as a correct and complete copy lien, security interest or encumbrance on the assets of each pending application for a determination letterAlpha or any of its Subsidiaries or any of their respective ERISA Affiliates under ERISA or the Code, if any. Except as set forth on Section 3.10(bor similar Laws of foreign jurisdictions.
(c) Neither Alpha nor any of the Company Disclosure Schedule, neither the Company its Subsidiaries nor any ERISA Affiliate sponsorsAffiliate, that, together with Alpha or any of its Subsidiaries would be deemed to be a “single employer” within the meaning of Section 4001(b) of ERISA, (i) maintains or contributes to, nor has to (A) any liability with respect to, a multiemployer plan (as defined in “employee benefit plan” within the meaning of Section 3(373(3) of ERISA) or a plan ERISA that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or (B) a “multiemployer plan” within the meaning of Section 303 3(37) and 4001(a)(3) of ERISA has been made before or a “multiple employer plan” within the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (vmeaning of Sections 4063/4064 of ERISA or Section 413(c) no such plan has applied for or received a waiver of the minimum Code, or (ii) has incurred or reasonably expects to incur any material liability pursuant to Title IV of ERISA (including any Controlled Group Liability), other than for premium payments to the Pension Benefit Guaranty Corporation. No Alpha Plan of Alpha, any of its Subsidiaries or any of their respective ERISA Affiliates has an “accumulated funding standards deficiency” (whether or an extension of any amortization period not waived) within the meaning of Section 412 of the Code or Sections Section 302 or 303 of ERISA ERISA. With respect to each Alpha Plan that is currently a “multiemployer plan,” no complete or partial withdrawal from such plan has been made by Alpha or any of its Subsidiaries that would reasonably be expected to result in effect; a material liability to Alpha or any of its Subsidiaries.
(d) No deduction for federal income Tax purposes has been or is expected by Alpha to be disallowed for compensation paid by Alpha or any of its Subsidiaries by reason of Section 162(m) of the Code, including by reason of the transactions contemplated hereby.
(e) To the knowledge of Alpha, no Alpha Plan is under audit or is the subject of an investigation, in each case by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Entity, nor is any such audit or investigation pending or threatened.
(f) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in conjunction with any other event (whether contingent or otherwise), (i) result in any payment or benefit becoming due or payable, or required to be provided, to any director, employee or independent contractor of Alpha or any of its Subsidiaries, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any such director, employee or independent contractor, (iii) result in the acceleration of the time of payment, vesting or funding of any such benefit or compensation, or (iv) result in any amount failing to be deductible by reason of Section 280G of the Code.
(g) To the knowledge of Alpha, all options have been granted in compliance with the terms of the applicable Alpha Plans, with applicable Law, and with the applicable provisions of the Alpha Certificate of Incorporation or Alpha Bylaws as in effect at the applicable time, and all such options are accurately disclosed as required under applicable Law in the Alpha SEC Reports, including the financial statements contained therein or attached thereto (viif amended or superseded by a filing with the SEC made prior to the date of this Agreement, as so amended or superseded). To the knowledge of Alpha, Alpha has not issued any options or any other similar equity awards pertaining to shares of Alpha Common Stock under any Alpha Plan with an exercise price that is less than the “fair market value” of the underlying shares of Alpha Common Stock on the date of grant, as determined for financial accounting purposes under GAAP.
(h) there are no funding-based benefit limitations (Each Alpha Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 436 409A(d)(1) of the Code and any award thereunder, in each case that is subject to Section 409A of the Code) currently , has been operated in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend compliance in all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on material respects with Section 3.10(c) 409A of the Company Disclosure ScheduleCode since January 1, the consummation 2006, based upon a good faith, reasonable interpretation of (A) Section 409A of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, Code and (iB)(1) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, regulations issued thereunder or (ii2) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligations, or compliance with LawsInternal Revenue Service Notice 2005-1.
Appears in 1 contract
Employee Benefits Matters. Section 3.10(a(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of of
(ai) the current plan document for each material Company Plan (or, if such Company Plan is not in writingunwritten, a written description of the material terms summary thereof), and all amendments thereto, (bii) the most recent annual reports on Form 5500 required to be filed with the Department of Labor IRS with respect to each material Company Plan (if any such report was required), (ciii) the most recent summary plan description for each material Company Plan for which such summary plan description is requiredrequired and (iv) where applicable, (d) each trust agreement and insurance or group annuity contract relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any each material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. The Company shall provide a list of each material Company Plan within thirty (30) days after the date of the Agreement.
(b) Each Company Plan is and each related trust agreement and insurance or group annuity contract has been administered in compliance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable lawsLaws, and the Company and each of its Subsidiaries is in compliance, and since January 1, 2018 has complied, with ERISA, the Code and all other Laws applicable to any compensation and benefit plans, programs, agreements and arrangements, including the Company Plans, in each case, except where such noncompliance would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. .
(i) There are no current, pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course), disputes, complaints or investigations by or on behalf of any participant in any of the Company Plans, or otherwise involving any Company Plan or the assets of any Company Plan and (ii) no audit or other proceeding by any Governmental Authority is pending, or to the Knowledge of the Company, threatened with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. .
(d) All Company Plans that are “employee pension benefit plans” (as defined in Section 3(33(2) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination or prototype opinion letter from the IRS or the Company has filed a timely application therefor and, to the Knowledge of the Company, no circumstances exist that are likely to adversely impact the qualification of any such Company Pension Plan qualifies in all material respects plan under Section 401(a) of the Code in operationCode. The Company has made available to Parent a correct and complete copy of the most recent determination or prototype opinion letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b.
(e) None of the Company Disclosure ScheduleCompany, neither the Company nor any of its Subsidiaries or any of their respective ERISA Affiliate Affiliates contributes to, sponsors, maintains or contributes to, nor has any liability with respect to, a or within the last six years, has contributed to, sponsored, maintained or has had any liability with respect to, any “multiemployer plan plan” (as defined in Section 3(37) of ERISA) or (a “Multiemployer Plan”), any plan that is subject to section Section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations “multiple employer plan” (within the meaning of Section 436 4063 of ERISA or 4064 of ERISA).
(f) None of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for material post-termination health, medical health or other welfare benefits. Except benefits except as set forth on may be required by Section 3.10(c) 4980B of the Company Disclosure Schedule, Code and Section 601 of ERISA or any other applicable Law or at the sole expense of the participant or the participant’s beneficiary.
(g) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will notwill, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any current or former director, employee or individual consultant or independent contractor of the Company or any of its Subsidiaries to severance pay, unemployment compensation or any other paymentpayment or benefit, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d) payable or level of the Company Disclosure Schedule, no amounts payable under the Company Plans will fail benefits to be deductible for federal income tax purposes by virtue provided, or trigger any other material obligation under any Company Plan, (iii) result in any breach or violation of, default under or limit the Company’s right to amend, modify or terminate any Company Plan or (iv) result in any payment that would reasonably be expected to be considered an “excess parachute payment” within the meaning of section Section 280G of the Code. This Neither the Company nor any of its Subsidiaries has any indemnity, gross up or any other obligation to reimburse any individual for any Taxes imposed under Section 3.10 constitutes the sole and exclusive representation and warranty 4999 or 409A of the Company regarding pension and employee benefit liabilities, obligations, Code or compliance with similar Laws.
Appears in 1 contract
Samples: Merger Agreement
Employee Benefits Matters. (a) Section 3.10(a3.9(a)(i) of the Company Horizon Disclosure Schedule sets forth a complete and accurate list, as correct list of all material Horizon Plans (the “Disclosed Horizon Plans”). Section 3.9(a)(ii) of the date Horizon Disclosure Schedule sets forth a complete and correct list of this Agreement, of each material Company Planall Disclosed Horizon Plans sponsored by an Acquired Entity (“Acquired Entity Plans”). The Company Horizon has made available to Parent Pasha, to the extent applicable, current, correct and complete copies of (ai) each Disclosed Horizon Plan, (ii) the current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), (b) the three most recent annual reports on Form 5500 required to be filed with the Department of Labor IRS with respect to each Company Horizon Plan (if any such report was required), (ciii) the most recent summary plan description for each material Company Horizon Plan for which such summary plan description is requiredrequired (together with any summary of material modifications, if applicable), (div) each trust agreement and insurance or group annuity contract relating to any Company Horizon Plan and (v) with respect to each Acquired Entity Plan, (e) all material documents and correspondence relating to the most recent audited financial statement and Acquired Entity Plan received from or provided to the actuarial U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending auditduring the past three years.
(b) Each Horizon Plan has been established, investigationmaintained, claim or dispute under any Company Plan. Each Company Plan is funded and administered in all material respects in compliance with its terms and in compliance in form and in operation with the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse EffectLaws. There are no pending or, to the Knowledge of the CompanyHorizon, threatened claims Actions (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Laborto, or any Liens filed against or with respect to, any Horizon Plans other Governmental Authority than claims made in the ordinary course of business which are not, individually or in the aggregate, material. All contributions required to be made by Horizon and its Subsidiaries have been timely made in compliance with applicable Law with respect to all Horizon Plans, and there are no material unfunded obligations of Horizon or any Company of its Subsidiaries under any Horizon Plan thatthat are not accurately reflected in Horizon’s financial statements and accrued in accordance with GAAP.
(c) All Horizon Plans, other than any “multiemployer plan” (as defined in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans Section 3(37) of ERISA) that are “employee pension benefit plans” (as defined in Section 3(33(2) of ERISA) that are intended to be tax Tax qualified under Section 401(a) of the Code (each, a “Company Horizon Pension Plan”) have received a favorable determination letter from the IRS on which Horizon may currently rely, or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operationtherefor. The Company Horizon has made available to Parent Pasha a correct and complete copy of the most recent determination letter received with respect to each Company Horizon Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. To the knowledge of Horizon, no fact exists or Event has occurred since the date of such letter or letters from the IRS that would reasonably be expected to result in the loss of the qualified status of any such Horizon Plan or the exempt status of any such trust.
(d) Except as set forth on Section 3.10(b3.9(d) of the Company Horizon Disclosure Schedule, neither the Company Horizon nor any trade or business, whether or not incorporated, that together with Horizon would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA Affiliate sponsors(including any entity that during the past six (6) years was a Subsidiary of Horizon) (each such entity, maintains an “ERISA Affiliate”) has now or contributes at any time within the previous six (6) years contributed to, nor has any liability with respect tosponsored, or maintained a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section Section 302 or Title IV of ERISA or section Section 412 of the Code. With Horizon and each ERISA Affiliate have satisfied the minimum funding standards under Section 412 or Section 430 of the Code or Section 302 or Section 303 of ERISA. Neither Horizon nor any ERISA Affiliate has incurred any withdrawal liability with respect to each Company Pension a complete or partial withdrawal from any Horizon Plan set forth on that is a “multiemployer plan” (as defined in Section 3.10(b4001(a)(3) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no ). No Horizon Plan is a “reportable eventmultiple employer welfare arrangement” (as such term is defined in Section 4043(b3(40)(A) of ERISA.
(e) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c3.9(e) of the Company Horizon Disclosure Schedule, the execution and delivery of this Agreement and the consummation of the Transactions will not, either alone or in combination with another eventEvent, except as expressly provided in this Agreement, (i) entitle any employee current or former employee, officer, director or consultant of the Company Hawaii Business to severance pay, unemployment compensation or any other paymentpayment from Horizon or any of its Affiliates under any Horizon Plan, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation or otherwise enhance any benefit due any such employee, officer, director or consultant or (iii) otherwise trigger any material obligations or penalties under, breach of or default under (with or without notice or lapse of time, or both), any Horizon Plan, including under any “multiemployer plan” (as defined in Section 3(37) of ERISA). Neither Horizon nor any Subsidiary is in material breach of or material default under the terms of any Horizon Plan. To the Knowledge of Horizon, no other party to any Horizon Plan is in material breach of or material default under the terms of any Horizon Plan.
(f) Neither Horizon nor any of its Subsidiaries is a party to any Contract, arrangement or plan (including any Horizon Plan) that has resulted or would result, separately or in the aggregate, in connection with the Transactions (either alone or in combination with any other Events), in the payment of any “excess parachute payments” to any “disqualified individual,” in each case within the meaning of Section 280G of the Code. There is no Contract, plan or other arrangement to which Horizon or any of its Subsidiaries is a party which provides for a gross-up in respect of taxes or other penalties imposed pursuant to Section 409A or 4999 of the Code.
(g) All premiums or other payments that are required to be paid have been timely paid with respect to each such Horizon Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether or officernot such Horizon Plan is subject to ERISA) or are accurately accrued and reflected in Horizon’s financial statements in accordance with GAAP. Except as set forth on Section 3.10(d3.9(g) of the Company Horizon Disclosure Schedule, no amounts payable under the Company Plans will fail Horizon Plan provides health or welfare benefits (whether or not insured), with respect to be deductible for federal income tax purposes current or former employees or directors of Horizon or any of its Subsidiaries beyond their retirement or other termination of service, other than health continuation coverage as required by virtue of section 280G Section 4980B of the Code. This , the full cost of which is borne by the current or former employee or director.
(h) No fiduciary or party in interest of any Horizon Plan has participated in, engaged in or been a party to any transaction that is prohibited under Section 3.10 constitutes the sole and exclusive representation and warranty 4975 of the Company regarding pension Code or Section 406 of ERISA and employee benefit liabilitiesnot exempt under Section 4975 of the Code or Section 408 of ERISA, obligationsrespectively, or compliance has otherwise acted or failed to act with Lawsrespect to any Horizon Plan in a manner, in either case, that could reasonably be expected to subject Horizon or any of its Subsidiaries to any material liability under ERISA or any other applicable Law.
(i) For each Horizon Plan which is a “group health plan” within the meaning of Section 5000(b)(1) of the Code, Horizon or an Acquired Entity has complied in all material respects with the notice and continuation coverage requirements of Section 4980B of the Code, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder.
(j) None of the Horizon Plans covering any Hawaii Employees are subject to the Laws of any country other than the United States.
(k) Neither Horizon nor any of its ERISA Affiliates has any legally binding plan or commitment to create any additional Horizon Plans or modify or change any existing Horizon Plans that would affect any employee or terminated employee of an Acquired Entity or any employee or terminated employee providing services to the Hawaii Business.
Appears in 1 contract
Samples: Contribution, Assumption and Purchase Agreement (Horizon Lines, Inc.)
Employee Benefits Matters. (a) Section 3.10(a3.11(a) of the Company Disclosure Schedule sets forth Schedules contains a complete and correct list of all Benefit Plans and all Benefit Agreements (a “Pension Plan”). The Company has delivered to the Buyer complete and correct copies of (i) each Benefit Plan and each Benefit Agreement (or, in the case of any unwritten Benefit Plans or Benefit Agreements, written descriptions thereof), including any amendments thereto, (ii) the two most recent annual reports required to be filed, or such similar reports, statements, information returns or material correspondence required to be filed with or delivered to any Governmental Entity, if any, with respect to each Benefit Plan, (iii) the most recent summary plan description (if any), and any summary of material modifications, prepared for each Benefit Plan, (iv) each trust agreement and group annuity or insurance Contract and other documents relating to the funding or payment of benefits under any Benefit Plan or Benefit Agreement, (v) the most recent determination, qualification or opinion letter or similar document issued by any Governmental Entity for each Benefit Plan intended to qualify for favorable tax treatment and any pending application therefor and a complete and accurate list of all amendments to any such Benefit Plans as to which a favorable determination or qualification letter has not yet been received and (vi) the two most recent actuarial valuations for each Benefit Plan (if any). All Participant data necessary to administer each Benefit Plan and Benefit Agreement is in the possession of the Company or the applicable Subsidiary thereof and is in a form that is sufficient for the proper administration of the Benefit Plans and Benefit Agreements in accordance with their terms and all applicable Laws and such data is complete and correct in all material respects. Each Benefit Plan and Benefit Agreement have been administered by the Company or its applicable Subsidiary in compliance in all material respects with their terms. The Company, each Subsidiary thereof, each Benefit Plan and each Benefit Agreement are in compliance in all material respects with all applicable provisions of any applicable Laws, whether domestic or foreign, and the terms of all collective bargaining agreements. Each Benefit Plan required to have been approved by any non-U.S. Governmental Entity (or permitted to have been approved to obtain any beneficial tax or other status) has been so approved or timely submitted for approval; no such approval has been revoked (nor, to the Knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor that is reasonably likely to affect any such approval or increase the costs relating thereto.
(b) With respect to each Benefit Plan or Benefit Agreement that is an employee welfare benefit plan (each, a “Welfare Plan”), there are no understandings, agreements or undertakings, written or oral, that would prevent any such plan (including any such plan covering retirees or other former Participants) from being amended or terminated without liability to the Company or any Subsidiary thereof at or at any time after the Closing, other than routine administrative costs and expenses. No Welfare Plan provides benefits after termination of employment except where benefits are provided through the end of the month in which such termination occurs or where the cost thereof is borne entirely by the former employee (or his or her eligible dependents or beneficiaries) or as required by any applicable Law. The Company and each Subsidiary thereof have complied in all material respects with the requirements of any applicable Law with respect to each Benefit Plan that is a “group health plan”.
(c) All reports, returns and similar documents with respect to all Benefit Plans required to be filed with any Governmental Entity or distributed to any Benefit Plan participant have been duly and timely filed or distributed. Neither the Company nor any Subsidiary thereof has received notice of any and, to the Knowledge of the Company, there are no pending investigations by any Governmental Entity with respect to, or pending termination proceedings or other claims (except claims for benefits payable in the normal operation of the Benefit Plans or Benefit Agreements) or Litigation against, or involving or asserting any rights or claims to benefits under, any Benefit Plan or Benefit Agreement.
(d) All contributions, premiums and benefit payments under or in connection with each Benefit Plan that are required to have been made by the Company or any Subsidiary thereof in accordance with the terms of such Benefit Plan and applicable Laws have been timely made. No Benefit Plan, or any insurance Contract related thereto, requires or permits a retroactive increase in premiums or payments on termination of such Benefit Plan or such insurance Contract. Neither the Company nor any Subsidiary has incurred any unfunded liabilities in relation to any Benefit Plan or Benefit Agreement, and for any Benefit Plan or Benefit Agreement for which funding is not required, all unfunded liabilities have been properly accrued on the 2009 Financial Statements in accordance with GAAP.
(e) With respect to each Benefit Plan, (i) there has not occurred any prohibited transaction in which the Company, any Subsidiary thereof or any of their respective employees or any trustee, administrator or other fiduciary of any such Benefit Plan (or any related trust), has engaged that could subject the Company, a Subsidiary thereof or any such employees, or, to the Knowledge of the Company, any such trustee, administrator or other fiduciary to the tax or penalty on prohibited transactions imposed by any applicable Law, and (ii) none of the Company, a Subsidiary thereof or any of their respective employees or any trustee, administrator or other fiduciary of such Benefit Plan (or any related trust) or, to the Knowledge of the Company, any agent of any of the foregoing has engaged in any transaction or acted in a manner that could, or failed to act so as to, subject the Company, a Subsidiary thereof or any such employees or any such trustee, administrator or other fiduciary to any liability for breach of fiduciary duty under any applicable Law. No Benefit Plan or related trust has been terminated.
(f) Neither the Company nor any Subsidiary thereof has any liability or obligation, including under or on account of a Benefit Plan or Benefit Agreement, arising out of the misclassification of Persons hired to provide services to the Company or a Subsidiary thereof and treated as consultants or independent contractors and not as employees of the Company or the applicable Subsidiary thereof. Except for the Persons listed in Section 3.11(f)(i) of the Company Disclosure Schedules, there are no independent contractors of the Company or any Subsidiary thereof, and all Persons so listed qualify as independent contractors under applicable Law. Except for the Persons listed in Section 3.11(f)(ii) of the Company Disclosure Schedules, there are no “leased employees” of the Company or any Subsidiary thereof.
(g) None of the employees of the Company or any Subsidiary thereof is a member of, represented by or otherwise subject to any (i) labor union, works council or similar organization or (ii) collective bargaining agreement, industry-wide collective bargaining agreement or any similar collective agreement, in each case with respect to such employee’s employment by the Company or such Subsidiary, and neither the Company nor any Subsidiary thereof has any obligation (including to inform or consult with any such employees or their representatives in respect of the transactions contemplated by this Agreement or the Indemnification Agreement) with respect to any such organization or agreement. The Company and each Subsidiary thereof are in compliance in all material respects with all applicable Laws and Orders with respect to labor relations, employment and employment practices, occupational safety and health standards, terms and conditions of employment, payment of wages, classification of employees, immigration, visa, work status, human rights, pay equity and workers’ compensation, and are not engaged in any unfair labor practice. The employment of each former employee of the Company and each Subsidiary thereof was terminated in accordance in all material respects with all applicable Laws, and neither the Company nor any Subsidiary thereof has, nor could any of them be expected to have, any liability with respect to any such former employees or any such termination of employment. Since the date of its incorporation or organization, neither the Company nor any Subsidiary thereof has engaged in any act or omission constitutes discrimination or harassment based on age, sex, religion or race. There is no unfair labor practice charge or complaint against the Company or any Subsidiary thereof pending or, to the Knowledge of the Company, threatened before the National Labor Relations Board or any comparable Governmental Entity. Since the date of its incorporation or organization, there has been no, and there currently is no, labor strike, dispute, request for representation, union organization attempt, walkout, slowdown or stoppage actually pending or, to the Knowledge of the Company, threatened against or affecting the Company or any Subsidiary thereof. No question concerning representation has been raised or, to the Knowledge of the Company, is threatened respecting the employees of the Company or any Subsidiary thereof. No grievance or arbitration proceeding arising out of a collective bargaining agreement is pending or, to the Knowledge of the Company, threatened against the Company or any Subsidiary thereof.
(h) The Company has delivered to the Buyer a complete and correct list, as of the date of this Agreement, of each material Company Plan. The Company has made available to Parent correct and complete copies of (a) the all current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description employees of the material terms Company and each Subsidiary thereof, including their respective titles, current base salary or wage rate, current target bonus, start date, service reference date (if different from the start date), (b) the most recent annual reports on Form 5500 required to be filed with the Department date of Labor with respect to each Company Plan (if birth, work location, vacation entitlement formula, amount of accrued but unused vacation, and whether or not any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description employee is required, (d) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Planon leave of absence. Each Company Plan is in compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable laws, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened claims (other than claims for benefits in the ordinary course) with respect to any Company Plans, nor is any Company Plan under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse Effect. All Company Plans that are “employee pension plans” (as defined in Section 3(3) of ERISA) that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies in all material respects under Section 401(a) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b3.11(h) of the Company Disclosure Schedule, neither Schedules sets forth a complete and correct list of all current non-employee directors of the Company nor any ERISA Affiliate sponsorsand each Subsidiary thereof, maintains or contributes to, nor has any liability with respect to, a multiemployer plan including their respective titles.
(as defined in i) Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b3.11(i) of the Company Disclosure ScheduleSchedules identifies each severance, (i) no proceeding has been initiated to terminate such plan termination, change of control or similar agreement or bonus arrangement or other employment Contract between the Company or any Subsidiary thereof and any Participant under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected Participant has a right or entitlement to have a (A) severance, termination, change of control or similar benefits or the payment of any bonus under existing Benefit Agreements, Benefit Plans, Contracts with, or plans or programs of, the Company Material Adverse Effect; or its Affiliates or (iiiB) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA benefit, in each case that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effectrelated to, or contingent upon, the Company and its Subsidiaries have reserved consummation of a transaction involving a change of control or change of management or reorganization, including, without limitation, the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. forgiveness of Indebtedness owed by such Participant.
(j) Except as set forth on in Section 3.10(c3.11(j) of the Company Disclosure ScheduleSchedules, the consummation no Participant will be entitled to (i)(A) any severance, separation, change of the Transactions will notcontrol, either alone termination, bonus, retention or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment other additional compensation or any other paymentbenefits, or (iiB) accelerate any acceleration of the time of payment or vestingvesting of any compensation or benefits, including the forgiveness of Indebtedness owed by such Participant, in the case of the foregoing clauses (A) and (B), as a result of any of the transactions contemplated by this Agreement or increase the amount of compensation due Indemnification Agreement except as provided in any offer letter that the Buyer enters into with a Participant; provided, however, that any such employee additional compensation or officer. Except as benefits set forth on Section 3.10(d3.11(j) of the Company Disclosure ScheduleSchedules shall be fully paid out of the Total Consideration as set forth in Section 2.02(b)(ii), no amounts payable under including any Tax Withholding. The execution and delivery of this Agreement and the Indemnification Agreement and the consummation of the transactions contemplated hereby and thereby and compliance by the Company Plans with the provisions hereof and thereof do not and will fail to be deductible for federal income tax purposes by virtue of section 280G of not require the Code. This Section 3.10 constitutes the sole and exclusive representation and warranty of the Company regarding pension and employee benefit liabilities, obligationsfunding (whether through a grantor trust or otherwise) of, or compliance increase the cost of, or give rise to any other obligation under, any Benefit Plan, Benefit Agreement or any other employment arrangement with Lawsa Participant and will not result in any breach or violation of, or default under, or limit the Company’s or any Subsidiary thereof's ability to amend, modify or terminate, any Benefit Plan or Benefit Agreement, other than as provided in any offer letter that the Buyer enters into with a Participant.
Appears in 1 contract
Samples: Unit Purchase Agreement (Gilat Satellite Networks LTD)
Employee Benefits Matters. (a) Section 3.10(a2.10(a)(i) of the Company Disclosure Schedule sets forth a true and complete and accurate list, as of the date of this Agreement, of each material Benefit Plan. Each such Benefit Plan or portion thereof (i) sponsored by any Fleet Subsidiary, or (ii) that Buyer or any of its Affiliates is required to assume under applicable Law or pursuant to this Agreement is referred to herein as an “Assumed Plan”. Section 2.10(a)(ii) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of each Assumed Plan. The Company has made available to Parent correct Buyer a true and complete copies copy of (a) the each Benefit Plan any amendments thereto with all related documentation including current plan document for each material Company Plan (or, if such Company Plan is not in writing, a written description of the material terms thereof), documents and all amendments thereto.
(b) the most recent annual reports on Form 5500 required to be filed with the Department of Labor with respect to each Company Plan Except as would not have a Fleet Material Adverse Effect: (if any such report was required), (c) the most recent summary plan description for each material Company Plan for which such summary plan description is required, (di) each trust agreement relating to any Company Plan, (e) the most recent audited financial statement and the actuarial or other valuation report prepared for the most recently completed plan year with respect thereto and (f) any material and non-routine correspondence with a Governmental Authority regarding any pending audit, investigation, claim or dispute under any Company Plan. Each Company Assumed Plan is being, and has been since January 1, 2012, administered in compliance accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable laws, except Laws; (ii) all Assumed Plans are duly registered where required by applicable Law (including registration with the relevant Governmental Authorities where such noncompliance would registration is required or permitted to qualify for Tax exemption or other beneficial Tax status); (iii) all contributions, payments and premiums required to be made under the terms of any Assumed Plan under applicable Law as of the date hereof have been made and any such contributions that are payable but not reasonably be expected to due have a Company Material Adverse Effect. There been accrued in accordance with GAAP; and (iv) there are no investigations, outstanding defaults or violations, termination or other proceedings or claims pending or, to the Knowledge of the Company’s Knowledge, threatened claims (other than routine claims for benefits payable under the Assumed Plans in the ordinary course) against or with respect to any Company Plans, nor is Assumed Plans or asserting any Company Plan rights to benefits under (and the Company has received no notice that there is any threatened) audit or administrative proceeding by the IRS, the Department of Labor, or any other Governmental Authority with respect to any Company Plan that, in each case, would reasonably be expected to have a Company Material Adverse EffectAssumed Plan. All Company Plans that are “employee pension plans” liabilities (as defined in Section 3(3whether accrued, absolute, contingent or otherwise) of ERISA) that each Fleet Subsidiary related to each Assumed Plan are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) have received a favorable determination letter from the IRS or has filed a timely application therefor and, to the Knowledge of the Company, such Company Pension Plan qualifies presented fairly in all material respects under Section 401(ain the Fleet Financials.
(c) of the Code in operation. The Company has made available to Parent a correct and complete copy of the most recent determination letter received with respect to each Company Pension Plan, as well as a correct and complete copy of each pending application for a determination letter, if any. Except as set forth on Section 3.10(b) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, nor has any liability with respect to, a multiemployer plan (as defined in Section 3(37) of ERISA) or a plan subject to section 302 or Title IV of ERISA or section 412 of the Code. With respect to each Company Pension Plan set forth on Section 3.10(b) of the Company Disclosure Schedule, (i) no proceeding has been initiated to terminate such plan under Sections 4041 or 4042 of ERISA; (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA) for which a reporting waiver does not apply that would reasonably be expected to have a Company Material Adverse Effect; (iii) no such plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (iv) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date except as would not reasonably be expected to have a Company Material Adverse Effect; (v) no such plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA that is currently in effect; and (vi) there are no funding-based benefit limitations (within the meaning of Section 436 of the Code) currently in effect. Other than as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have reserved the right and power to terminate, suspend, discontinue and amend all Company Plans that provide for post-termination health, medical or other welfare benefits. Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, the consummation of the Transactions will not, either alone or in combination with another event, except as expressly provided in this Agreement, (i) entitle any employee of the Company to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. Except as set forth on Section 3.10(d2.10(c) of the Company Disclosure Schedule, no amounts Fleet Subsidiary has nor is there any liability (whether actual or contingent) in respect of post-retirement or other post-employment health, medical, dental, disability, hospitalization or life insurance benefits for any Fleet Employee or beneficiary thereof, except as required to avoid excise Tax under Section 4980B of the Code or under any similar provision of state or foreign Law.
(d) No Assumed Plan is a “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), a “multiple employer plan” described in Section 413(c) of the Code or a “multi-employer plan” as defined in subsection 1(1) of the Pension Benefits Act of Ontario (or other comparable Canadian pensions legislation), or subject to Title IV of ERISA or Section 412 of the Code.
(e) Except as provided in Section 2.10(e) of the Company Disclosure Schedule, none of the execution and delivery of this Agreement or the consummation of the Transactions will (i) result in, or accelerate the time of payment or vesting of, any payment (including severance, change in control, stay or retention bonus or otherwise) becoming due to any Fleet Employee, (ii) materially increase any benefits otherwise payable under any Assumed Plan to any Fleet Employee, (iii) result in the acceleration of the time of payment or vesting of any such benefits under any Assumed Plan, (iv) trigger any other material obligation under, or result in the breach or violation of, any Assumed Plan, (v) limit or restrict the right of Buyer to merge, amend or terminate any Assumed Plan on or after the Closing Date or (vi) result in forgiveness of Indebtedness, distribution or restriction on funds under an Assumed Plan or with respect to a Fleet Employee. No Fleet Employee is entitled to any gross-up or make-whole from the Company Plans or any of its Affiliates (including the Fleet Subsidiaries) in respect of any Tax under Section 4999 or 409A of the Code or interest or penalty related thereto. The execution, delivery and performance by the Company of this Agreement and the consummation of the Transactions will fail not give rise to be deductible for federal income any loss by a Fleet Subsidiary of any tax purposes by virtue of section deduction under Section 280G of the Code. This Code and the U.S. Treasury Regulations promulgated thereunder, excluding any lost deduction that results from payments or benefits to be made or provided pursuant to arrangements entered into at the direction of Buyer or between Buyer or its Affiliates and a disqualified individual.
(f) Section 3.10 constitutes the sole and exclusive representation and warranty 2.10(f) of the Company regarding Disclosure Schedule identifies each Assumed Plan that is a “registered pension and employee plan” as that term is defined in subsection 248(1) of the ITA (collectively, the “Canadian Pension Plans”). No Canadian Pension Plan contains or has ever contained a “defined benefit liabilities, obligations, or compliance with Lawsprovision” as that term is defined in subsection 147.1(1) of the ITA.
Appears in 1 contract
Samples: Stock Purchase Agreement (PHH Corp)
