Employee Benefits Plans; ERISA. (a) Neither NDI nor PSE maintains or contributes, has any obligation or liability to or under, or has previously maintained, contributed to, or had an obligation or liability under, any employee benefit plans, programs, arrangements or practices, including employee benefit plans within the meaning set forth in Section 3(3) of the Employment Retirement Income Security Act of 1974, as amended ("ERISA"), or other similar material arrangements for the provision of benefits (collectively "Employee Benefit Plans"). Neither NDI nor PSE has any obligation to create any additional such plan or to amend any such plan so as to increase benefits thereunder, except as required under the terms of the Employee Benefit Plans or to comply with applicable law. (b) NDI has furnished to the Corporation a complete and accurate copy of each Employee Benefit Plan and a complete and accurate copy of each material document prepared in connection with each such Employee Benefit Plan, including, without limitation and where applicable, a copy (i) each summary plan description and summary of material modifications, and (ii) the most recently issued IRS determination letter for each such Employee Benefit Plan. (c) To NDI's knowledge, each Employee Benefit Plan has been operated in all respects in accordance with the requirements of all applicable laws and all persons who participate in the operation of such Employee Benefit Plans and all Employee Benefit Plan "fiduciaries" (within the meaning of Section 3(21) of ERISA) have acted in accordance with the provisions of all applicable laws. NDI and PSE has performed all obligations required to be performed by them under, are not in any respect in default under or in violation of, and NDI does not have any knowledge of any default or violation by any party to, any Employee Benefit Plan. No legal action, suit or claim is pending or, to the knowledge of NDI, threatened with respect to any Employee Benefit Plan (other than claims for benefits in the ordinary course) and no fact or event exists that could give rise to any such action, suit or claim. (d) No contributions, premiums or payments are required to be made by NDI with respect to any Employee Benefit Plan. (e) Neither NDI nor PSE is a party to any employment, severance, consulting or other similar contracts with any employees, consultants, officers or directors of NDI or PSE other than the contracts that are listed in ITEM 6.11 of the NDI Disclosure Schedule.
Appears in 1 contract
Employee Benefits Plans; ERISA. (a) Neither NDI nor PSE maintains The Seller Disclosure Letter sets forth an accurate and complete list of each plan, program, policy or contributes, has arrangement (whether written or oral) providing cash or other compensation or benefits of any obligation kind or liability to description whatsoever (whether current or under, or has previously maintained, contributed deferred) to, or had an obligation or liability underon behalf of, any current or former officer, employee or director of the Company or any of its Subsidiaries or any of their dependents under which Company or any of its Subsidiaries has any liability, duty or obligation whatsoever, whether fixed or contingent, including but not limited to, any employment, consulting or severance agreement and any "employee benefit plans, programs, arrangements or practices, including employee benefit plans within the meaning set forth plan" as defined in Section 3(3) of the Employment Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or other similar material arrangements for ) (individually a "Benefit Plan" and collectively the provision of benefits (collectively "Employee Benefit Plans"). Neither NDI the Company nor PSE any of its ERISA Affiliates has ever contributed directly or indirectly to (or had any obligation to create contribute directly or indirectly to) any additional such multiemployer pension plan or to amend any such plan so (as to increase benefits thereunderdefined in Section 3(37) of ERISA), and, except as required under disclosed in the terms Seller Disclosure Letter, neither the Company nor any of its ERISA Affiliates has within the past ten years, maintained or contributed to (or had any obligation to contribute directly or indirectly to) any defined benefit plan (as defined in Section 3(35) of ERISA). Neither the Company nor any of its Subsidiaries maintains or contributes to any Benefit Plan which provides health, accident or life insurance benefits to former employees, their spouses or dependents, other than in accordance with Section 4980B of the Employee Benefit Plans or to comply with applicable lawCode ("COBRA").
(b) NDI has furnished to The Benefit Plans (and related trusts and insurance contracts) comply (and have at all times complied) in form and in operation with the Corporation a complete requirements of applicable laws and accurate copy of each Employee Benefit Plan and a complete and accurate copy of each regulations in all material document prepared in connection with each such Employee Benefit Planrespects, including, without limitation limitation, ERISA and where applicablethe Code and the nondiscrimination rules thereof, a copy and the requirements of COBRA. All contributions, premiums or payments which are due on or before the Closing Date under each Benefit Plan have been paid or accrued on the appropriate balance sheet. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code (i) each summary plan description and summary of material modifications, has been amended on a timely basis in compliance with the Code and (ii) has received from the most recently issued IRS Internal Revenue Service a favorable determination letter for each which considers the terms of such Employee Benefit PlanPlan as amended.
(c) To NDI's knowledgeAll required reports and descriptions (including IRS/DOL/PBGC Form 5500 annual reports, summary annual reports and summary plan descriptions) with respect to the Benefit Plans have been properly and timely filed with the appropriate government agency and distributed to participants and beneficiaries as required.
(d) With respect to each Employee Benefit Plan, neither the Company nor any of its Subsidiaries has any liability for (i) any prohibited transactions as defined in Section 406 of ERISA or Section 4975 of the Code or (ii) any breach of fiduciary duty or any other failure to act or comply in connection with the administration of such Benefit Plan has been operated in all respects in accordance with or investment of the requirements of all applicable laws and all persons who participate in the operation assets of such Employee Benefit Plans, and no actions, investigations, suits or claims with respect to such Benefit Plans and all Employee Benefit Plan "fiduciaries" or the assets thereof (within the meaning of Section 3(21other than routine claims for benefits) of ERISA) have acted in accordance with the provisions of all applicable laws. NDI and PSE has performed all obligations required to be performed by them under, are not in any respect in default under or in violation of, and NDI does not have any knowledge of any default or violation by any party to, any Employee Benefit Plan. No legal action, suit or claim is pending or, to the knowledge Knowledge of NDISeller, threatened with respect threatened, and neither the Company nor Seller has Knowledge of any facts which would give rise to any Employee Benefit Plan (other than claims for benefits in the ordinary course) and no fact or event exists that could reasonably be expected to give rise to any such actionactions, suit suits or claim.
(d) No contributions, premiums or payments are required to be made by NDI with respect to any Employee Benefit Planclaims.
(e) Neither NDI nor PSE is a party With respect to each of the Benefit Plans, Seller has furnished, or made available, to Buyer true and complete copies of (i) the plan documents, summary plan descriptions and summaries of material modifications and other material employee communications, (ii) the IRS/DOL/PBGC Form 5500 annual report (including all schedules and other attachments for the most recent three years), (iii) all related trust agreements, insurance contracts or other funding agreements which implement such plans, (iv) all contracts relating to each such plan, including, without limitation, service provider agreements, insurance contracts, investment management agreements and record keeping agreements, (v) all Internal Revenue Service Department of Labor and Pension Benefit Guaranty Corporation rulings or determinations, actuarial and other financial reports for all periods ending on or after December 31, 1992, with respect to each Benefit Plan, (vi) an accurate written summary of all material provisions of each unwritten Benefit Plan; and (vii) such other documentation with respect to any employmentBenefit Plan as is reasonably requested by Buyer.
(f) Neither the Company nor any of its ERISA Affiliates has incurred or has reason to expect that it will incur, severance, consulting or other similar contracts with any employees, consultants, officers or directors of NDI or PSE liability to the Pension Benefit Guaranty Corporation (other than routine premium payments ) or otherwise under Title IV of ERISA (including any withdrawal liability) or under the contracts Code with respect to any employee pension benefit plan (as defined in Section 3(2) of ERISA) that are listed in ITEM 6.11 the Company or any of its ERISA Affiliates maintains or has ever maintained.
(g) All of the NDI Disclosure Scheduleassets which have been set aside in a trust or insurance company separate account to satisfy any obligations under any Benefit Plan are shown on the books and records of each such trust and each such account at their current fair market value as of the most recent valuation date equals or exceeds the present value of any obligation under any Benefit Plan, and the liabilities for all other obligations under any Benefit Plan are accurately set forth in the Company's most recent Financial Statement.
(h) Each Benefit Plan which Company or its Subsidiaries has treated as satisfying the requirements of Code Section 401 and each trust which Company or its Subsidiaries has treated as satisfying the requirements of Code Section 501 at all times have in fact satisfied such requirements in all material respects.
(i) The transactions contemplated by this Agreement will not result in any additional payments to or benefit accruals for, or any increase in the vested interest of any current or former officer, employee or director or their dependents under any Benefit Plan. The transactions contemplated by this Agreement will not result in any payments to any current or former officer, employee or director of the Company or its Subsidiaries which will be subject to Section 280G of the Code.
(j) The term "ERISA Affiliate" shall include any organization whose employees are treated as "Company's" employees under Code Section 41.4(b), (c), (m) or (o).
Appears in 1 contract
Samples: Stock Purchase Agreement (America Service Group Inc /De)
Employee Benefits Plans; ERISA. (a) Neither NDI nor PSE maintains The Seller Disclosure Letter sets forth an accurate and complete list of each plan, program, policy or contributes, has arrangement (whether written or oral) providing cash or other compensation or benefits of any obligation kind or liability to description whatsoever (whether current or under, or has previously maintained, contributed deferred) to, or had an obligation or liability underon behalf of, any current or former officer, employee or director of the Company or any of its Subsidiaries or any of their dependents under which Company or any of its Subsidiaries has any liability, duty or obligation whatsoever, whether fixed or contingent, including but not limited to, any employment, consulting or severance agreement and any "employee benefit plans, programs, arrangements or practices, including employee benefit plans within the meaning set forth plan" as defined in Section 3(3) of the Employment Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or other similar material arrangements for ) (individually a "Benefit Plan" and collectively the provision of benefits (collectively "Employee Benefit Plans"). Neither NDI the Company nor PSE any of its ERISA Affiliates has ever contributed directly or indirectly to (or had any obligation to create contribute directly or indirectly to) any additional such multiemployer pension plan or to amend any such plan so (as to increase benefits thereunderdefined in Section 3(37) of ERISA), and, except as required under disclosed in the terms Seller Disclosure Letter, neither the Company nor any of its ERISA Affiliates has within the past ten years, maintained or contributed to (or had any obligation to contribute directly or indirectly to) any defined benefit plan (as defined in Section 3(35) of ERISA). Neither the Company nor any of its Subsidiaries maintains or contributes to any Benefit Plan which provides health, accident or life insurance benefits to former employees, their spouses or dependents, other than in accordance with Section 4980B of the Employee Benefit Plans or to comply with applicable lawCode ("COBRA").
(b) NDI has furnished to The Benefit Plans (and related trusts and insurance contracts) comply (and have at all times complied) in form and in operation with the Corporation a complete requirements of applicable laws and accurate copy of each Employee Benefit Plan and a complete and accurate copy of each regulations in all material document prepared in connection with each such Employee Benefit Planrespects, including, without limitation limitation, ERISA and where applicablethe Code and the nondiscrimination rules thereof, a copy and the requirements of COBRA. All contributions, premiums or payments which are due on or before the Closing Date under each Benefit Plan have been paid or accrued on the appropriate balance sheet. Each Benefit Plan which is intended to be qualified under Section 401(a) of the Code (i) each summary plan description and summary of material modifications, has been amended on a timely basis in compliance with the Code and (ii) has received from the most recently issued IRS Internal Revenue Service a favorable determination letter for each which considers the terms of such Employee Benefit PlanPlan as amended.
(c) To NDI's knowledgeAll required reports and descriptions (including IRS/DOL/PBGC Form 5500 annual reports, summary annual reports and summary plan descriptions) with respect to the Benefit Plans have been properly and timely filed with the appropriate government agency and distributed to participants and beneficiaries as required.
(d) With respect to each Employee Benefit Plan, neither the Company nor any of its Subsidiaries has any liability for (i) any prohibited transactions as defined in Section 406 of ERISA or Section 4975 of the Code or (ii) any breach of fiduciary duty or any other failure to act or comply in connection with the administration of such Benefit Plan has been operated in all respects in accordance with or investment of the requirements of all applicable laws and all persons who participate in the operation assets of such Employee Benefit Plans, and no actions, investigations, suits or claims with respect to such Benefit Plans and all Employee Benefit Plan "fiduciaries" or the assets thereof (within the meaning of Section 3(21other than routine claims for benefits) of ERISA) have acted in accordance with the provisions of all applicable laws. NDI and PSE has performed all obligations required to be performed by them under, are not in any respect in default under or in violation of, and NDI does not have any knowledge of any default or violation by any party to, any Employee Benefit Plan. No legal action, suit or claim is pending or, to the knowledge Knowledge of NDISeller, threatened with respect threatened, and neither the Company nor Seller has Knowledge of any facts which would give rise to any Employee Benefit Plan (other than claims for benefits in the ordinary course) and no fact or event exists that could reasonably be expected to give rise to any such actionactions, suit suits or claim.
(d) No contributions, premiums or payments are required to be made by NDI with respect to any Employee Benefit Planclaims.
(e) Neither NDI nor PSE is a party With respect to each of the Benefit Plans, Seller has furnished, or made available, to Buyer true and complete copies of (i) the plan documents, summary plan descriptions and summaries of material modifications and other material employee communications, (ii) the IRS/DOL/PBGC Form 5500 annual report (including all schedules and other attachments for the most recent three years), (iii) all related trust agreements, insurance contracts or other funding agreements which implement such plans, (iv) all contracts relating to each such plan, including, without limitation, service provider agreements, insurance contracts, investment management agreements and recordkeeping agreements, (v) all Internal Revenue Service Department of Labor and Pension Benefit Guaranty Corporation rulings or determinations, actuarial and other financial reports for all periods ending on or after December 31, 1992, with respect to each Benefit Plan, (vi) an accurate written summary of all material provisions of each unwritten Benefit Plan; and (vii) such other documentation with respect to any employmentBenefit Plan as is reasonably requested by Buyer.
(f) Neither the Company nor any of its ERISA Affiliates has incurred or has reason to expect that it will incur, severance, consulting or other similar contracts with any employees, consultants, officers or directors of NDI or PSE liability to the Pension Benefit Guaranty Corporation (other than routine premium payments ) or otherwise under Title IV of ERISA (including any withdrawal liability) or under the contracts Code with respect to any employee pension benefit plan (as defined in Section 3(2) of ERISA) that are listed in ITEM 6.11 the Company or any of its ERISA Affiliates maintains or has ever maintained.
(g) All of the NDI Disclosure Scheduleassets which have been set aside in a trust or insurance company separate account to satisfy any obligations under any Benefit Plan are shown on the books and records of each such trust and each such account at their current fair market value as of the most recent valuation date equals or exceeds the present value of any obligation under any Benefit Plan, and the liabilities for all other obligations under any Benefit Plan are accurately set forth in the Company's most recent Financial Statement.
(h) Each Benefit Plan which Company or its Subsidiaries has treated as satisfying the requirements of Code Section 401 and each trust which Company or its Subsidiaries has treated as satisfying the requirements of Code Section 501 at all times have in fact satisfied such requirements in all material respects.
(i) The transactions contemplated by this Agreement will not result in any additional payments to or benefit accruals for, or any increase in the vested interest of any current or former officer, employee or director or their dependents under any Benefit Plan. The transactions contemplated by this Agreement will not result in any payments to any current or former officer, employee or director of the Company or its Subsidiaries which will be subject to Section 280G of the Code.
Appears in 1 contract
Employee Benefits Plans; ERISA. (a) Neither NDI nor PSE maintains or contributes, has any obligation or liability to or under, or has previously maintained, contributed to, or had an obligation or liability under, any Section 3.25(a) of the Disclosure Schedule contains a list of all “employee benefit plans, programs, arrangements or practices, including employee benefit plans ” within the meaning set forth in of Section 3(3) of the Employment Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), and any other employee benefit plans, policies, trust funds or other similar material arrangements for the provision of benefits (collectively "whether written or unwritten, insured or self-insured) (each an “Employee Benefit Plans"). Neither NDI nor PSE has Plan”) (1) established, maintained, sponsored or contributed to (or with respect to which any obligation to create contribute has been undertaken) by Seller or any additional such plan entity that would be deemed a “single employer” with Seller under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (each, an “ERISA Affiliate”) on behalf of any employee, officer or consultant of the Business (whether current, former or retired) or their beneficiaries or (2) with respect to amend which Seller or any ERISA Affiliate has or has had since January 1, 1996 any obligation on behalf of any such plan so as to increase benefits thereunderemployee, except as required under officer, consultant or beneficiary (each, a “Plan” and, collectively, the terms “Plans”). Seller has delivered true, correct and complete copies of each of the Employee Benefit Plans or to comply with applicable lawand related documents and governmental filings.
(b) NDI Since January 1, 1996, to Seller’s Knowledge, none of Seller or any ERISA Affiliate or any of their respective predecessors has furnished ever contributed to, contributes to, has ever been required to contribute to, or otherwise participated in or participates in or in any way, directly or indirectly, has any Liability with respect to any plan subject to Section 412 of the Corporation a complete and accurate copy Code, Section 302 of each Employee Benefit Plan and a complete and accurate copy ERISA or Title IV of each material document prepared in connection with each such Employee Benefit PlanERISA, including, without limitation and where applicablelimitation, a copy any “multiemployer plan” (iwithin the meaning of Sections 3(37) each summary or 4001(a)(3) of ERISA or Section 414(f) of the Code) or any single employer pension plan description and summary of material modifications, and (ii) the most recently issued IRS determination letter for each such Employee Benefit Plan.
(c) To NDI's knowledge, each Employee Benefit Plan has been operated in all respects in accordance with the requirements of all applicable laws and all persons who participate in the operation of such Employee Benefit Plans and all Employee Benefit Plan "fiduciaries" (within the meaning of Section 3(214001(a)(15) of ERISA) have acted in accordance with the provisions which is subject to Sections 4063, 4064 and 4069 of all applicable lawsERISA. NDI and PSE To Seller’s Knowledge, no Purchased Asset is, or has performed all obligations required to be performed by them underbeen since January 1, are not in any respect in default under or in violation of1996, and NDI does not have any knowledge of any default or violation by any party to, any Employee Benefit Plan. No legal action, suit or claim is pending or, to the knowledge of NDI, threatened with respect subject to any Employee Benefit Plan (other than claims for benefits in lien under ERISA or the ordinary course) and no fact or event exists that could give rise to any such action, suit or claimCode.
(dc) No contributions, premiums or payments are required With respect to each of the Plans: (1) each Plan that is intended to be made by NDI with respect to any Employee Benefit Plan.
(equalified under Section 401(a) Neither NDI nor PSE is a party to any employment, severance, consulting or other similar contracts with any employees, consultants, officers or directors of NDI or PSE other than the contracts that are listed in ITEM 6.11 of the NDI Disclosure Schedule.Code (i) has been timely amended to reflect the changes required by the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”), the Department of Labor’s final regulations for claims procedures and the Internal Revenue Service’s (“IRS”) final regulations for minimum distributions, and the correct mortality table as prescribed in Revenue Ruling 2001-62 and (ii) has received a determination letter, opinion letter, advisory letter or notification letter, as applicable, from the IRS regarding its qualified status under the Code for all amendments required prior to EGTRRA, has time remaining to apply under applicable Treasury regulations or IRS pronouncements for a letter and to make any amendments necessary to obtain a favorable letter or, if reliance is permitted under IRS Announcement 2001-77, relies on the favorable opinion letter or advisory letter of the master and prototype or volume submitter plan sponsor of such plan, and, to Seller’s Knowledge, nothing has occurred, whether by action or by failure to act, that caused or could cause the loss of such qualification or the imposition of any penalty or Tax Liability;
Appears in 1 contract
Employee Benefits Plans; ERISA. (a) Neither NDI nor PSE maintains or contributes, has any obligation or liability to or under, or has previously maintained, contributed to, or had an obligation or liability under, any employee benefit plans, programs, arrangements or practices, including employee benefit plans within the meaning set forth Each Company Plan is listed in Section 3(3) Schedule 6.11 of the Employment Retirement Income Security Act of 1974, as amended ("ERISA"), or other similar material arrangements for the provision of benefits (collectively "Employee Benefit Plans")Company Disclosure Letter. Neither NDI the Company nor PSE any Company Subsidiary has any obligation to create any additional such plan Company Plan or to amend any such plan Company Plan so as to increase benefits thereunder, except as required under the terms of the Employee Benefit Plans Company Plans, under existing collective bargaining agreements or to comply with applicable lawLaw. There are no restrictions on the rights of Company or any Company Subsidiary to amend or terminate any Company Plan without incurring any liability thereunder (other than ordinary administrative expenses).
(b) NDI The Company has furnished to the Corporation Parent a complete and accurate copy of each Employee Benefit Company Plan and a complete and accurate copy of each material document prepared in connection with each such Employee Benefit Company Plan, including, without limitation and where applicable, a copy of (i) each trust or other funding arrangement, (ii) each summary plan description and summary of material modifications, and (iiiii) the three (3) most recently issued IRS filed Internal Revenue Service Form 5500s and related schedules, (iv) all Internal Revenue Service determination letter letters for each such Employee Benefit Company Plan, (v) the three (3) most recently prepared actuarial reports and financial statements in connection with each such Company Plan, and (vi) any other related documents as Parent has reasonably requested.
(c) To NDI's knowledgeNeither the Company nor any current or former member of the Company’s “controlled group,” within the meaning of Section 4001(a)(14) of ERISA, each Employee Benefit maintains or contributes to or had an obligation to contribute to, or within the five (5) years preceding the Effective Time has maintained or contributed to or had an obligation to contribute to, an employee pension benefit plan subject to Title IV of ERISA. In connection with the consummation of the Merger, no payments of money or other property, acceleration of benefits, or provisions of other rights have or will be made hereunder, under any agreement contemplated herein, or under the Company Plans or any other plan, arrangement or agreement to which the Company or any Company Subsidiary is a party that would be reasonably likely to result in imposition of the sanctions imposed under Sections 280G and 4999 of the Code, determined without regard to whether such payment is reasonable compensation for services performed or to be performed in the future, and whether or not some other subsequent action or event would be required to cause such payment, acceleration, or provision to be triggered. Neither the Company, any Company Subsidiary, Parent, or any affiliate of Parent will be obligated to pay, or reimburse any individual for, any excise taxes or similar taxes imposed on any employee or former employee of, or individual providing services to, the Company or any Company Subsidiary under Section 4999 of the Code or any similar provisions as a result of the consummation of the Merger, either alone or in connection with any other event. Neither the Company nor any Company Subsidiary is a party to any agreement, plan or arrangement pursuant to which compensation is or would be includible in the gross income of an employee, director or independent contractor of the Company or any Company Subsidiary, or to which interest or any additional tax would apply as a result of the operation of Section 409A of the Code. None of the Company Plans provides for or promises retiree medical, disability or life insurance benefits to any current or former employee, officer or director of the Company or any Company Subsidiary, except as otherwise required with respect to health plan coverage in §4980B of the Code. Each of the Company Plans is subject only to the laws of the United States or a political subdivision thereof.
(d) Each Company Plan has been operated in all material respects in accordance with the requirements of all applicable laws Laws and all persons who participate in the operation of such Employee Benefit Company Plans and all Employee Benefit Company Plan "“fiduciaries" ” (within the meaning of Section 3(21) of ERISA) have acted in accordance all material respects in compliance with the provisions of all applicable lawsLaws. NDI The Company and PSE has the Company Subsidiaries have performed all obligations required to be performed by any of them under, are not in any respect in default under or in violation of, and NDI does not have any knowledge of any there is no default or violation by any party to, any Employee Benefit Company Plan, except where such failures, defaults or violations would not, individually or in the aggregate, have a Company Material Adverse Effect, taken as a whole. No legal action, suit or claim is pending or, to the knowledge of NDIthe Company, threatened with respect to any Employee Benefit Company Plan (other than claims for benefits in the ordinary course). Neither the Company nor any Company Subsidiary has incurred any material “withdrawal liability” within the meaning of Section 4201 of ERISA.
(e) Each Company Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the Internal Revenue Service that it is so qualified, and each trust established in connection with any Company Plan that is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and no fact or event has occurred since the date of such determination letter from the Internal Revenue Service to adversely affect the qualified status of any such Company Plan or the exempt status of any such trust. No trust maintained or contributed to by the Company or any Company Subsidiary is intended to be qualified as a voluntary employees’ beneficiary association or is intended to be exempt from federal income taxation under Section 501(c)(9) of the Code.
(f) There has been no non-exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any Company Plan. Neither the Company nor any Company Subsidiary has incurred any liability for any excise tax arising under Section 4972 or 4980B of the Code and, to the knowledge of the Company, no fact or event exists that could give rise to any such action, suit liability. Neither the Company nor any Company Subsidiary or claimaffiliate thereof has withdrawn (including a partial withdrawal) from any Multi-Employer Plan within the meaning set forth in Section 3(37) of ERISA.
(dg) No All contributions, premiums or payments are required to be made by NDI with respect to any Employee Benefit PlanCompany Plan have been made on or before their due dates.
(eh) Neither NDI the Company nor PSE any Company Subsidiary is a party to any employment, severance, consulting consulting, retirement, change of control, deferred compensation or other similar contracts with any employees, former employees, consultants, officers or directors of NDI the Company or PSE any Company Subsidiary other than the such contracts that are listed disclosed in ITEM 6.11 the Company Disclosure Letter. Neither the execution and delivery of this Agreement nor the consummation of the NDI Disclosure Scheduletransactions contemplated hereby will (i) result in any payment (including severance, unemployment compensation, parachute payment, bonus, or otherwise) becoming due to any director, employee, or independent contractor of the Company or any Company Subsidiary, from the Company under any Company Plan, agreement or otherwise, (ii) materially increase any benefits otherwise payable under any Company Plan or agreement, or (iii) result in the acceleration of the time of payment or vesting of any such benefits.
(i) Neither the Company nor any member of its controlled group has ever established, maintained, or contributed to or otherwise participated in, or had an obligation to maintain, contribute to, or otherwise participate in, any Multi-Employer Plan or any multiple employer welfare arrangement as defined in Section 3(40) of ERISA. Neither the Company nor any Company Subsidiary has engaged in, nor is either a successor or parent corporation to an entity that has engaged in, a transaction described in ERISA Section 4069.
(j) No Company Plan is subject to any ongoing audit, investigation, or other administrative proceeding of the IRS, the U.S. Department of Labor, or any other Governmental Authority or is scheduled to be subject to such an audit, investigation, or proceeding.
(k) Neither the Company nor any Company Subsidiary is a party to any agreement, plan, contract or arrangement pursuant to which compensation is or would be includible in the gross income of an employee, director, or independent contractor of the Company or a Subsidiary or to which interest or any additional tax would apply as a result of Code Section 409A.
Appears in 1 contract
Samples: Merger Agreement (Labor Ready Inc)
