Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is a list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan. (b) Sellers have delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports). (c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan. (d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing. (e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law. (f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction." (g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary). (h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA. (i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan. (j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code. (k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA. (l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA). (m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements. (n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements. (o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), Each Benefit Plan is a list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified listed on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m3.14(a), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) (i) No claim, action or litigation has been made or commenced, or to the Knowledge of Sellers threatened, with respect to any Benefit Plan (other than routine claims for benefits payable in the ordinary course, and appeals of such denied claims) and (ii) each Benefit Plan is and has been established, maintained, funded, invested and administered in material compliance with all requirements of Law applicable thereto and the respective requirements of the governing documents for such plan.
(c) With respect to each Benefit Plan, Sellers have delivered or will deliver heretofore made available to Buyer Purchasers true and complete copies of each of the following documents: (i) a copy of the Employee Plans plan (or to the extent no such copy exists, an accurate written description thereof); (ii) copies of all booklets, summaries, manuals and related trust written communications of a general nature distributed or made available to any Company Employees concerning any Benefit Plan; (iii) all investment management agreements and other funding arrangements, if anyservice provider contracts, and adoption all subscription and participation agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan ; (iv) material employee communications by to the plan administrator extent these documents exist for such plans; a copy of any Employee Plan (includingeach trust, but not limited toinsurance contract, summary plan descriptions and summaries of material modifications as defined under ERISA), and or other funding arrangement; (v) copies of all material correspondence with any Governmental Authority; and (vi) the three most recent annual reports (e.g.recently prepared actuarial report, information return and financial statements. Except as specifically provided in the complete Form 5500 series) prepared in connection foregoing documents made available to Purchasers, there are no amendments to any Benefit Plan, nor has any party with each Employee Plan (if the authority to do so undertaken or committed to make any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by amendments or to adopt or approve any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee new Benefit Plan.
(d) To With respect to each Benefit Plan:
(i) all employer and employee payments, contributions or accruals (including premiums) required by Law or by the knowledge terms of such plan have been made when due pursuant to applicable Laws and the terms of the Corporation and the Sellersplan, or if applicable, accrued, in accordance with GAAP;
(ii) there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability unfunded Liabilities with respect to any Employee Plan andsuch plan (including, to for the knowledge avoidance of doubt, any such plan that has been discontinued) that are not reflected in the Balance Sheet;
(iii) none of the Corporation or the Sellers, such Benefit Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service to Company Employees or to the beneficiaries or dependents of such employees (other than (i) coverage mandated death benefits when termination occurs upon death or as required by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or Law);
(iv) benefitseach Benefit Plan that provides self-insured benefits is subject to a stop-loss insurance policy under which the Company, Sellers or any of their respective Affiliates is an insured party and the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISACompany, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have electedSellers, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have their respective Affiliates has complied at with all times and will continue to comply through the date terms of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, stop-loss policy and has been qualified during the period from the date of its adoption timely paid all premiums owing with respect to such stop-loss policy through the date of this Agreement. The transaction contemplated by this Agreement will not cancel, and each trust created thereunder is taximpair or reduce amounts payable under any such stop-exempt under Section 501(aloss insurance policy;
(v) none of the Code. The Company, Sellers have delivered or will deliver any of their respective Affiliates sponsors, maintains, contributes to or has any liability under, nor has ever sponsored, maintained, contributed to or incurred any liability under a “registered pension plan” or a “retirement compensation arrangement,” each as defined under the Buyers Income Tax Act (Canada), a “pension plan” as defined under applicable pension benefits standards legislation, or any other plan organized and administered to provide pensions for Company Employees;
(vi) all employee data necessary to administer each Benefit Plan is in the latest determination letters possession of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. FurthermoreCompany, there are no pending proceedings or, to the knowledge Sellers or any of the Corporation their respective Affiliates or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan their respective agents and is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract form which is terminable within thirty (30) days without liability to sufficient for the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions proper administration of the Benefit Arrangements have been or will be delivered Plan in accordance with its terms and all Laws and such data is complete and correct;
(vii) subject to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by of applicable Laws, no provision of any Benefit Plan or of any agreement, and all statutesno act or omission of the Company, ordersSellers or any of their respective Affiliates in any way limits, rules and regulations which are applicable impairs, modifies or otherwise affects the rights of the Company to such unilaterally amend or terminate any Benefit Arrangements.Plan;
(nviii) There there has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Benefit Plan or Benefit Arrangement that would materially increase materially the annual expense of maintaining such Employee Plan or Benefit Arrangement plan above the level of the expense incurred in respect of such Employee Plan or Benefit Arrangement therefor for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to any Company Employee;
(ix) none of the Benefit ArrangementsPlans requires or permits a retroactive increase in premiums or payments, or requires additional payments or premiums on the termination of any Benefit Plan or insurance contract in respect thereof, and the level of insurance reserves, if any, under any insured Benefit Plan is reasonable and sufficient to provide for all incurred but unreported claims; and
(x) if intended to qualify for special tax treatment, each such plan complies in all material respects with all requirements for such treatment, and no circumstances exist that might give reason to any applicable Governmental Authority to revoke such treatment.
(oe) There is no contract, agreement, plan or arrangement covering any employee or former employee Neither the execution and delivery of this Agreement nor the consummation of the Corporation that, individually transactions contemplated by this Agreement will (either alone or in aggregateconjunction with any other event) (i) result in the accelerated vesting, could give rise funding or delivery of, or increase in any material respect the amount or value of, any payment or benefit to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible Company Employee pursuant to the terms of any Benefit Plan or otherwise, (ii) limit or prohibit the ability to amend, merge, terminate or receive a reversion of assets from any Benefit Plan or their related trusts, or (iii) require the funding of any trust or funding vehicle. No amount paid or payable (whether in cash, in property, or in the form of benefits) in connection with the transactions contemplated by this Agreement (either solely as a result thereof or as a result of such transactions in conjunction with a Company Employee’s termination of employment after the Closing Date) will be an “excess parachute payment” within the meaning of Section 280G of the Code.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Bristow Group Inc)
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is a list identifying each "employee pension benefit plan," as defined in Section 3(23.19(a) of ERISA the Disclosure Schedule sets forth a complete and correct list of each Employee Benefit Plan, other than any employment agreement or arrangement that is terminable “at will” without penalty, Liability or premium upon notice of ninety (the "Pension Plans"90) and as Schedule 4.23(a)(2), a list identifying days or less. With respect to each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. CollectivelyEmployee Benefit Plan, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver Company has provided to Buyer true true, correct and complete copies of (to the extent applicable): (i) all plan and trust documents and any amendments thereto, all contracts relating thereto, or the Employee Plans (and related trust agreements and other funding arrangements, if anythereof, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, modification; (ii) death, disability the most recent IRS determination or retirement benefits opinion letter relating to each Employee Benefit Plan intended to be qualified under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code; (iii) the three (3) most recent IRS Forms 5500 (including all schedules), (iv) the most recent annual report, actuarial report, accountant’s opinion of the plan’s financial statements and any current schedule of the assets, and (v) with respect to any Employee Benefit Plan not in written form, an accurate written description of such Employee Benefit Plan.
(b) Except as set forth on Section 3.19(b) of the Disclosure Schedule, each Employee Benefit Plan complies in all material respects in form with all requirements of applicable Law and has been qualified during maintained, funded and administered in material compliance with the period from terms of such Employee Benefit Plan, the date applicable requirements of its adoption the Code and ERISA and any other applicable Laws, and, to the date Knowledge of this AgreementSeller, no event has occurred which will or could reasonably be expected to cause any such Employee Benefit Plan to fail to comply with such requirements and each trust created thereunder is tax-exempt under no notice has been issued by any governmental authority questioning or challenging such compliance. Except as set forth on Section 501(a3.19(b) of the Code. The Sellers have delivered or will deliver Disclosure Schedule, each Employee Benefit Plan intended to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "be qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in under Section 411(d401(a) of the Code is so qualified and has received a favorable determination or opinion letter from the regulations thereunderIRS, and, to the Knowledge of any Pension Seller, no event has occurred or condition exists that could reasonably be expected to adversely affect the qualification of such Employee Benefit Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is All Employee Benefit Plans that are subject to Section 302 409A of ERISA or the minimum funding standards imposed by Code comply with Section 412 409A in form and have been administered in accordance with their terms and Section 409A of the Code.
(kc) At any time With respect to each Employee Benefit Plan, all payments, premiums, contributions, and reimbursements required to be made for all periods commencing after January 1, 2019 and ending prior to or as of the date of this Agreement and from such date Closing Date have been made. There are no Actions (other than routine claims for benefits in the Ordinary Course) pending or, to the date Knowledge of ClosingSeller, neither currently threatened with respect to any Employee Benefit Plan, and, to the Corporation nor Knowledge of Seller, no facts exist that could reasonably be expected to give rise to any such actions, suits or claims (other than routine claims for benefits). None of the assets of any Employee Benefit Plan are invested in employer securities or employer real property. There have been no “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Benefit Plan that are not otherwise exempt under Section 408 of ERISA and none of the Company, any of its Subsidiaries or any of their respective ERISA Affiliates have has engaged in any prohibited transaction.
(d) None of the Company, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, sponsors, contributes to, has any obligation to contribute to, or has or at any time participated within the past six (6) years had any Liability under or with respect to (i) a “defined benefit plan,” as defined in Section 3(35) of ERISA or been liable to contribute to any plan subject to Title IV of ERISA.
, (lii) The Corporation and its a pension plan subject to the minimum funding standards of Section 302 of ERISA Affiliates have not beenor Section 412 of the Code, nor will they become through the date of Closing, liable to contribute to any "(iii) a “multiemployer plan" (,” as defined in Section 3(37) of ERISA, (iv) any post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and section 4980B of the Code or applicable state law, or (v) any multiple employer pension plan or multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA).
(me) Schedule 4.23(mAccruals for all obligations under the Employee Benefit Plans are reflected in the financial statements of Seller and such obligations include a pro rata amount of the contributions that would otherwise have been made in accordance with past practices and applicable Law for the all plan years since January 1, 2019.
(f) contains There have been no acts or omissions by the Company, any of its Subsidiaries or any of their respective ERISA Affiliates that have given rise to or would reasonably be expected to give rise to interest, fines, penalties, taxes or related charges under section 502 of ERISA or Chapters 43, 47, 68 or 100 of the Code for which the Company, any of its Subsidiaries or any of their respective ERISA Affiliates may be liable or under Section 409A of the Code for which the Company, any of its Subsidiaries or any of their respective ERISA Affiliates or any participant in any Employee Benefit Plan that is a list identifying each employmentnonqualified deferred compensation plan (within the meaning of section 409A of the Code) may be liable. The Company, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation)its Subsidiaries, and each plan Employee Benefit Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (a “Health Plan”) (I) is currently in compliance in all material respects with the Healthcare Reform Laws, and (II) has been in compliance in all material respects with all applicable Healthcare Reform Laws since March 23, 2010. No event has occurred, and to the Knowledge of Seller, no conditions or arrangement providing for insurance coverage (including any self-insured arrangements)circumstance exists, workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rightsthat would reasonably be expected to subject the Company, or any Health Plan, to material penalties or excise taxes under Sections 4980D or 4980H of the Code or any other forms provision of incentive compensation the Healthcare Reform Laws.
(g) Except as set forth on Section 3.19(g) of the Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (alone or post-retirement compensation or benefit which in connection with any other event): (i) entitle any Person to any payment, forgiveness of Company Indebtedness, vesting, distribution, or increase in benefits or compensation, whether under or with respect to any Employee Benefit Plan or otherwise under any compensatory plan; (ii) result in any acceleration of vesting or payment of benefits or compensation or otherwise under any compensatory plan, whether under or with respect to any Employee Benefit Plan or otherwise; (iii) trigger any obligation to fund any Employee Benefit Plan or other compensation or benefit; or (iv) give rise to any “excess parachute payment” as defined in Section 280G(b) of the Code (without regard to subsection (b)(4) thereof). None of the Seller or any of its ERISA Affiliates is a nonqualified entity within the meaning of section 457A of the Code. No Employee Benefit Plan or any contract, agreement, plan, policy, or arrangement with any employee, officer, director, consultant or independent contractor of the Company or any of its ERISA Affiliates provides for a “gross-up” or similar payment in respect of any taxes that may become payable under Sections 409A or 4999 of the Code. There has been no act or omission that would impair the ability of the Seller and its Subsidiaries (or any successor thereto) to amend or terminate any Employee Benefit Plan in accordance with its terms.
(h) Neither the Company nor its Subsidiaries sponsors, contributes to, has any obligation to contribute to, or has any direct or contingent liability with respect to any Employee Benefit Plan, program, policy or arrangement of any kind that is for the benefit of individuals located outside of the United States. Except as would not result in any material Liability to the Company or any of its Subsidiaries, none of the Employee Benefit Plans provides benefits to any individual who is not (i) an Employee Planeligible employee of the Company or its Subsidiaries, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or an eligible former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred Company or its Subsidiaries (to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or extent coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually is required by applicable Law) or in aggregate, could give rise to the payment by the Corporation, directly (iii) an eligible spouse or indirectly, dependent of any amount that would not be deductible pursuant to the terms of Section 280G of the Codeperson covered by clause (i) or (ii).
Appears in 1 contract
Samples: Stock Purchase Agreement (Heritage-Crystal Clean, Inc.)
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(14.20(a)(1), is a list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA ERISA, including any "multi-employer plan," as defined in Section 3(37) of ERISA, (the "Pension Plans") and as Schedule 4.23(a)(24.20(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the CorporationSellers, or which cover any employee or former employee of the CorporationSellers. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(14.20(a)(1) and Schedule 4.23(a)(24.20(a)(2) and on Schedule 4.23(m4.20(l), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m4.20(l) of this Agreement) is maintained, administered or contributed to by any entity other than the CorporationSellers, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan Plan, (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports) and (vi) the three most recent actuarial valuation reports prepared in connection with each Employee Plan (if any such report was required).
(c) To the knowledge of the Corporation and the Sellers, each Each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there There are no pending or, to the knowledge of the Corporation Sellers or the SellersShareholder, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation Sellers relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation Sellers or the SellersShareholder, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation Sellers relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation Sellers or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation Sellers within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation Sellers or the SellersShareholder, such Plans do not expect to incur any such liability prior to the date of Closing. The CorporationSellers, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation Sellers or the Sellers Shareholder have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation Sellers or the Sellers Shareholder have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation Sellers or the SellersShareholder, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation Sellers beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the CorporationSellers, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have materially complied at all times, and will continue to materially comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The CorporationSellers, or its their agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation Sellers or the SellersShareholder, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation Sellers to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers Buyer the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation Sellers or the SellersShareholder, threatened proceedings in which the "qualified qualified" status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. No distributions have been made from any of the Pension Plans that would violate in any respect the restrictions under Treas. Reg. Section 1.401(a)(4)-5(b), and none will have been made by the date of Closing. To the knowledge of the Corporation Sellers or SellersShareholder, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto Schedule 2.20 sets forth a true and complete list of all Benefit Plans and identifies as Schedule 4.23(a)(1such each Benefit Plan that is an "employee welfare plan," as defined in ERISA Section 3(1) (a "Welfare Plan"), is a list identifying each or an "employee pension benefit plan," as defined in ERISA Section 3(2) of ERISA (the a "Pension PlansPlan") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISAthat Company, (the "Welfare Plans") that, in either case, are maintained, administered and any trade or contributed to by the Corporationbusiness which is under control, or which cover any employee or former employee of the Corporation. Collectivelyis treated as a single employer, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in with Company under Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of maintains, participates in, or contributes to, or has ever maintained, participated in, or contributed to; provided, however, that the Code (an term "ERISA AffiliatePension Plan" shall not include any Benefit Plan that is a ") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transactionmultiemployer plan" within the meaning of ERISA Section 406(a3(37) (a "Multiemployer Plan"). Each Benefit Plan that is not a Welfare Plan, Pension Plan or 406(b) of ERISA, or of Section 4975(c) of the Code with respect Multiemployer Plan is referred to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other below as a "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transactionBenefit Arrangement."
(gb) No Employee Plan provides benefitsSeller or Company has delivered to Buyer true and complete copies of: (i) all plan texts, including without limitation, death, disability, or medical benefits agreements and material employee communications relating to each Benefit Plan; (ii) all summary plan descriptions (whether or not insuredrequired to be furnished pursuant to ERISA), the three (3) most recent annual reports (including all schedules thereto) and the three (3) most recent annual and periodic accounting and financial statements of related plan assets with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any each Pension Plan and Welfare Plan, ; (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period most recent determination letter received from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating with respect to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue ; and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of (iv) the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under actuarial report with respect to each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(lc) The Corporation No event has occurred (and there exists no condition or set of circumstances) in connection with any Benefit Plan that could subject Company, Buyer, or any Benefit Plan, directly or indirectly, to any liability under ERISA, IRC or any other law, regulation or governmental order applicable to any Benefit Plan.
(d) Each Benefit Plan (other than any Multiemployer Plan) conforms to, and its administration is in compliance with, all applicable laws and regulations, including, but not limited to, ERISA Affiliates have not beenand IRC, nor will they become through and no fiduciary of any Benefit Plan has taken any action that could result in such fiduciary being liable for the payment of damages under ERISA Section 409 and that would result in any liability for Company or Buyer.
(e) Each Pension Plan that is intended to qualify under Section 401(a) or 403(a) of IRC is so qualified and has received a favorable determination letter from the Internal Revenue Service with respect to such qualification, its related trust has been determined to be exempt from taxation under Section 501(a) of IRC, and nothing has occurred since the date of Closingsuch letter that could adversely affect such qualification or exemption.
(f) Each Benefit Plan (other than any Multiemployer Plan) has been maintained in accordance with its terms, liable to contribute and there are no pending or threatened claims, lawsuits or arbitrations (other than routine claims for benefits) that have been asserted or instituted against or with respect to any such Benefit Plan or the assets of any of the trusts under any such Benefit Plan.
(g) There has been no failure to comply with applicable ERISA or other requirements as to the filing of reports, documents and notices with the Secretary of Labor, the Secretary of the Treasury and the Pension Benefit Guaranty Corporation ("multiemployer planPBGC") that could subject any Benefit Plan (other than any Multiemployer Plan), any fiduciary thereof, Company or Buyer to a penalty, and any requirement of the furnishing of such documents to participants or beneficiaries, due before the Closing Date, has been or will be complied with by all of the Benefit Plans prior to the Closing.
(h) No "prohibited transaction," (as such term is defined in Code Section 3(374975 and ERISA Section 406, has occurred with respect to any Pension Plan or Welfare Plan that could subject such Plan, any fiduciary thereof, Company or Buyer to a penalty for such prohibited transaction imposed by ERISA Section 502 or a material tax imposed by Code Section 4975.
(i) Any bond required by applicable provisions of ERISAERISA with respect to any Pension Plan or Welfare Plan has been obtained and is in full force and effect.
(j) No "reportable event," as such term is defined in ERISA Section 4043(c), has occurred or is continuing with respect to any Pension Plan.
(k) No Pension Plan that is or was subject to Title IV of ERISA has been terminated; no proceeding has been initiated to terminate any such Plan; and Company has not incurred, nor reasonably expects to incur, any liability, whether to the PBGC or otherwise, except for required premium payments, which payments have been made when due, with respect to the termination of any Pension Plan. No event has occurred (and there exists no condition or set of circumstances) that presents a material risk of the partial termination of any Pension Plan.
(l) No Benefit Plan provides medical or death benefits (whether or not insured) with respect to current or former employees of Company beyond their retirement or other termination of service (other than coverage mandated by law or death benefits under any Pension Plan).
(m) Schedule 4.23(mThere are no unfunded benefit obligations arising in any jurisdiction.
(n) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive The consummation of the transactions contemplated hereby will not entitle any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee current or former employee of Company to severance pay, unemployment compensation or any similar payment, or accelerate the Corporation. Such contractstime of payment or vesting, plans or increase the amount of any compensation due to any such employee or former employee.
(o) Seller has provided (or has caused the applicable Benefit Plans to provide) and arrangements will continue to provide (or cause the applicable Benefit Plans to provide) for "continuation coverage" to or for the benefit of each "covered employee" and each "qualified beneficiary" entitled thereto (as such terms are hereinafter referred defined in Code Section 4980B) and shall otherwise comply in all respects with the requirements (including, but not limited to, notice requirements) of Code Section 4980B as to collectively each such covered employee and each such qualified beneficiary with respect to whom a "qualifying event" (as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been defined in Code Section 4980B) has occurred (or will be delivered occur) through the Closing.
(p) Schedule 2.20 sets forth a true and correct list of all Multiemployer Plans to Buyerwhich Seller or Company have contributed, or are required to contribute. Each Benefit Arrangement To the best knowledge of Seller and Company, each Multiemployer Plan has been maintained in substantial compliance with the requirements prescribed by any and all applicable statutes, orders, rules and regulations which are applicable regulations, including, but not limited to, ERISA and IRC. To the best knowledge of Seller and Company, no "prohibited transaction," as defined in ERISA Section 406 or Code Section 4975, has occurred in connection with any Multiemployer Plan. Seller or Company shall have made, on or prior to such Benefit Arrangementsthe Closing, all contributions required to be made to each Multiemployer Plan.
(nq) There has been no amendment toSchedule 2.20 sets forth accurately, written interpretation for each Multiemployer Plan, the amount of contributions by Seller or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining Company to such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement plan for the most recent prior two plan year years and the amount of withdrawal liability as determined under Section 4201 of ERISA that Seller or Company would incur if they withdrew from such plan in a complete withdrawal. With respect to any Multiemployer Plan, Seller or Company have not incurred or otherwise become liable for and are not reasonably expected to incur or become liable for a "complete withdrawal" or "partial withdrawal," as such terms are defined in Sections 4203 and 4205 of ERISA, respectively, with respect to Employee Plans events that have occurred before or as of the most recent fiscal year Closing. Seller previously has furnished to Buyer complete and correct summaries of Seller's and Company's contribution history with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee each of the Corporation that, individually or Multiemployer Plans set forth in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the CodeSchedule 2.20.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(14.22(a)(1), is a list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA ERISA, including any "multiemployer plan," as defined in Section 3(37) of ERISA, (the "Pension Plans") and as Schedule 4.23(a)(24.22(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(14.22(a)(1) and Schedule 4.23(a)(24.22(a)(2) and on Schedule 4.23(m4.22(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m4.22(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have The Corporation has delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan Plans, (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports) and (vi) the three most recent actuarial valuation reports prepared in connection with each Employee Plan (if any such report was required).
(c) To the knowledge of the Corporation and the Sellers, each Each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To The Corporation has received no service or other written notice of, and to the knowledge Knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings Proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts Contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, the Corporation has received no service or other written notice of, and to the Knowledge of the Corporation and Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings Proceedings by any federal, state, local or other governmental agency or authority Governmental Authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts Contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge Knowledge of the Corporation or the and Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the The Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee PlansPlan, and will not so engage, act or fail to act prior to the date of ClosingClosing Date. To the knowledge of the The Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge Knowledge of the Corporation or the and Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, any severance or other post-employment benefit, salary contribution, termination, death, disability, health or medical benefits (whether or not insured), life insurance or similar benefits with respect to current or former employees of the Corporation (or their spouses or dependents) beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary) or (v) severance payments under severance agreements or arrangements disclosed on Schedule 4.22(m).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, thereunder ("COBRA")) have complied at all times, and will continue to comply through the date of ClosingClosing Date, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of ClosingClosing Date, with the notification and written notice requirements of COBRA. There are The Corporation has received no pendingservice or other written notice of, and to the knowledge Knowledge of the Corporation or the and Sellers, there are no threatened claims, suits, or other proceedings Proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such personPerson, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA. Each Employee Plan that is a group health plan, within the meaning of Section 9832(a) of the Code, has complied with and satisfied the applicable requirements of Sections 9801 and 9802 of the Code.
(i) To the knowledge of the Corporation and the Sellers, each Each Pension Plan is intended to be "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, Code and each trust created thereunder is intended to be tax-exempt under Section 501(a) of the Code. The Sellers have Corporation has delivered or will deliver to the Buyers Buyer the latest determination letters of the Internal Revenue Service IRS relating to each Pension PlanPlan that is intended to be "qualified" within the meaning of Section 401(c) of the Code. Such Those determination letters have not been revoked. Furthermore, the Corporation has received no service or other written notice of, and to the Knowledge of the Corporation and Sellers, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified qualified" status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. No distributions have been made from any of the Pension Plans that would violate in any respect the restrictions under Treas. Reg. Section 1.401(a)(4)-5(b), and none will have been made by the Closing Date. To the knowledge Knowledge of the Corporation or and Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statementsFinancial Statements. No Pension Plan is subject to has incurred any "accumulated funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of the Code and no Pension Plan has applied for or received a waiver of the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither Neither the Corporation nor any of its ERISA Affiliates have at any time participated in Affiliate has ever adopted, established or been liable to contribute to any plan subject to maintained a Pension Plan that is covered by Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, been liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA). No amount is due from, or owed by, the Corporation or any ERISA Affiliate on account of a "multiemployer plan" (as defined in Section 3(37) of ERISA) or on account of any withdrawal therefrom.
(m) Schedule 4.23(m4.22(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements. Except as set forth on Schedule 4.22(n), the execution of this Agreement and the consummation of the transactions contemplated hereby do not and will not constitute an event under any Employee Plan or Benefit Arrangement, that either alone or upon the occurrence of a subsequent event, will or may result in any payment, acceleration, vesting or increase in benefits to any employee, former employee or director of the Corporation.
(o) There Except as set forth on Schedule 6.2, there is no contract, agreementContract, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (Wilson Greatbatch Technologies Inc)
Employee Benefits Plans. (a) Attached hereto as Disclosure Schedule 4.23(a)(1), is 5.15(a) sets forth a correct and complete list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), of: (i) no Employee Plan or Benefit Arrangement all “employee benefit plans” (as defined in Section 4.23(m3(3) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts programs, agreements, policies, arrangements or payroll practices, including bonus plans, employment, consulting or other compensation agreements, collective bargaining agreements, incentive, equity or equity-based compensation, or deferred compensation arrangements, change in control, termination or severance plans or arrangements, other than ordinary stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and usual claims for benefits scholarship plans and programs maintained by participants Cherry or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts its Subsidiaries or arrangements. If to which Cherry or any of the actions described in this subsection are initiated prior its Subsidiaries contributed or is obligated to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") contribute thereunder for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement Cherry or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
Subsidiaries (lthe “Cherry Employees”) The Corporation and its ERISA Affiliates have not been(collectively, nor will they become through the date of Closing, liable to contribute to any "“Cherry Plans”). Disclosure Schedule 5.15(a) sets forth each Cherry Plan that is a “multiemployer plan" ” (as defined in Section 3(37) of ERISA (a “Cherry Multiemployer Plan”)), or is or has been subject to Sections 4063 or 4064 of ERISA).
(mb) Schedule 4.23(m) contains a list identifying Correct and complete copies of the following documents, with respect to each employmentof the Cherry Plans (other than an Cherry Multiemployer Plan), severance have been made available or similar contractdelivered to IWM by Cherry, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which extent applicable: (i) is not an Employee Planany plans, all amendments thereto and related trust documents, insurance contracts or other funding arrangements, and amendments thereto; (ii) has been entered into or maintainedthe most recent Forms 5500 and all schedules thereto and the most recent actuarial report, as the case may be, by the Sellers or the Corporation, and if any; (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent IRS determination letter; (iv) summary plan year with respect descriptions; (v) written communications to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise employees relating to the payment by the Corporation, directly or indirectly, Cherry Plans; and (vi) written descriptions of any amount that would not be deductible pursuant all non-written agreements relating to the terms of Section 280G of the CodeCherry Plans.
Appears in 1 contract
Samples: Merger Agreement (Institute for Wealth Holdings, Inc.)
Employee Benefits Plans. (a) Attached hereto Each Contract set forth in Schedule 3.12 that provides for the employment of any Company Employee is the valid and binding obligation of the Group Companies or Blocker Companies, as Schedule 4.23(a)(1applicable, and, to the Company’s Knowledge, the other parties thereto, in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), is and excepting any non-compete or restriction on future employment, as to which no representations are made regarding enforceability).
(b) Except as set forth in Schedule 3.14(b), the Group Companies and Blocker Companies do not maintain, sponsor, contribute to or have any requirement to contribute to or otherwise have any Liability with respect to any agreement, arrangement, plan, or policy, qualified or non-qualified, that involves any (i) pension, retirement, profit sharing, savings, deferred compensation, bonus, stock option, stock purchase, phantom stock, incentive plan, multiple employer plan (as described in ERISA Section 4063 and under any other applicable law, regulation or ruling) or any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)); (ii) welfare or “fringe” benefits, including, without limitation, severance, disability, medical, hospitalization, dental, life or other insurance, health care reimbursement, dependent care assistance, cafeteria plan, or other similar benefits; or (iii) any employment, consulting, engagement, retainer or golden parachute agreement or arrangement, including any “employee benefit plan” as defined in ERISA Section 3(3) (each such plan listed on Schedule 3.14(b), a list identifying “Company Benefit Plan”). To the extent applicable with respect to each "Company Benefit Plan, true, correct and complete copies of the most recent documents described below have been made available to Purchaser: (i) IRS determination or approval letter and any outstanding request for a determination letter; (ii) Form 5500 for the most recent plan year, including any attachments or exhibits thereto; (iii) all plan documents and amendments and any written policies or procedures used in plan administration; (iv) current summary plan descriptions and any summaries of material modifications; (v) administrative service agreements, HIPAA business associate agreements, related trust agreements, annuity contracts and other funding instruments, and (vi) form of letters and notices given to Company Employees under Code Section 4980B, HIPAA policies and procedures and HIPAA notice of privacy practices.
(c) None of the Company Benefit Plans or underlying funding or other agreements will be terminated by the consummation of the transactions contemplated by this Agreement. Each Company Benefit Plan may be amended or terminated by the Purchaser or any of the Group Companies or Blocker Companies on or at any time after the Closing Date. With respect to each Company Benefit Plan, no non-exempt prohibited transactions (as defined in ERISA Section 406 or Code Section 4975) and no violations of ERISA Section 407 have occurred that would, in each case, result in material liability to a Group Company and/or Blocker Company.
(i) All the Company Benefit Plans that are “employee pension benefit plan," plans” (as defined in Section 3(2) of ERISA ERISA) that are intended to be tax qualified under Section 401(a) of the Code (the "each, a “Company Pension Plans"Plan”) are set forth in Schedule 3.14(c) and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, so qualified; and (ii) no Employee event has occurred since the date of the most recent determination letter or application therefor relating to any such Company Pension Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee that would reasonably be expected to materially and adversely affect the qualification of such Company Pension Plan.
(bd) Sellers have delivered No Company Benefit Plan is a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which a Group Company or will deliver any Blocker Company could incur liability under Section 4063 or 4064 of ERISA or a plan maintained by more than one employer as described in Section 413(c) of the Code. Neither a Group Company nor any Blocker Company has ever maintained or contributed to Buyer true and complete copies or had any obligation to maintain or contribute to or otherwise has any liability with respect to (including by reason of (i) being a member in a controlled group within the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (iimeaning of Section 414 of the Code) any amendments plan that is or was subject to the Employee PlansTitle IV of ERISA, (iii) written interpretations Section 412 of the Employee Plans Code, Section 302 of ERISA or a Multiemployer Plan; neither a Group Company nor any Blocker Company is a member of a controlled group (within the meaning of Section 414 of the Code) which contributes to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required)plan; neither a Group Company nor any Blocker Company is under common control (within the meaning of Section 414 of the Code) with an employer which contributes to any such plan; and neither a Group Company nor a Blocker Company has incurred any liability under Title IV of ERISA that has not been paid in full.
(e) Neither a Group Company nor any Blocker Company has any liability or obligation to provide life, including all attachments medical, or other welfare benefits to former or retired employees or other service providers, other than under COBRA (including without limitation or any similar applicable state laws requiring the actuarial valuation reportscontinuation of medical benefits).
(cf) To the knowledge of the Corporation Each Company Benefit Plan and the Sellers, each Employee Plan related trust agreement or other funding instrument complies with and has been administered, operated, and maintained in each case, in all material respects respects, in compliance with its terms and Applicable Law. Except as set forth in Schedule 3.14(f), each Company Benefit Plan and related trust agreement or other funding instrument complies with and has been administered, operated, and maintained in each case, in all material respects, in compliance with its terms and Applicable Law. Any failures to administer, operate, or maintain in all material respects the requirements prescribed Dymatize Enterprises, Inc. 401(k) Savings Plan and any other Company Benefit Plan intended to be qualified under Code Section 401(a) in compliance with its terms or applicable Law disclosed on Schedule 3.14(f), have been or at or prior to the Closing, will be corrected, in all material respects, and without further action required by the Company or its Affiliates or by the Purchaser or its Affiliates at or after the Closing, and without further liability to or with respect to the applicable Company Benefit Plan, the Company or its Affiliates, the participants and beneficiaries in any such Company Benefit Plan, or the Purchaser or its Affiliates at or after the Closing. True, correct and complete copies of all statutesdocuments relating to the identification and correction of any such failures, ordersincluding, rules without limitation, any calculations, submissions to and regulationscorrespondence with any governmental agency, including but not limited toplan amendments, and participant or other notices or communications, have been made available to the Purchaser.
(g) All contributions to the Company Benefit Plans have been made or accrued in accordance with ERISA and the Code, which are Code and applicable Law. All insurance premiums with respect to such Employee Planeach Company Benefit Plan have been paid in accordance with the terms of each Company Benefit Plan and applicable Laws.
(dh) To the knowledge of the Corporation and the SellersOther than routine claims for benefits, there are no Company Benefit Plan is subject to any material pending or, to the knowledge Knowledge of the Corporation or the SellersCompany, threatened claimsaction, suits investigation, examination, claim (including claims for Taxes) or any other proceedings proceeding initiated by any employeesPerson, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge Knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the SellersCompany, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans facts exist that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRAwould give rise thereto.
(i) To Neither the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date execution of this Agreement and from such date to nor the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee consummation of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or transactions contemplated by this Agreement will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible by any Group Company or any Blocker Company pursuant to Code Section 280G. Except as set forth on Schedule 3.14(i), the terms of Section 280G consummation of the Codetransactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any current or former director, independent contractor, Contingent Worker or Company Employee to severance pay, bonus amounts, retirement benefits, unemployment compensation, termination benefits, or any other payment; or (ii) trigger or accelerate the time of payment, funding, or vesting, or increase the amount or value of any benefit or compensation due to any current or former director, independent contractor, Contingent Worker or Company Employee.
(j) Each Company Benefit Plan and other agreement or arrangement that provides for the deferral of compensation subject to Code Section 409A is, and has been, operated in operational and documentary compliance with Code Section 409A, in each case, in all material respects. No operational or documentary failures have occurred under Code Section 409A with respect to any Company Benefit Plan, whether or not such failures were corrected pursuant to applicable IRS guidance.
Appears in 1 contract
Samples: Securities Purchase Agreement (Post Holdings, Inc.)
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is 5.2 sets forth a complete list identifying each "of (i) all “employee pension benefit planplans," ” as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(13(3) of ERISA, (the "Welfare Plans"ii) thatall other severance pay, salary continuation, bonus, incentive, stock option, or other equity, retirement, pension, profit sharing, welfare, fringe benefit or deferred compensation plans, contracts, programs, funds, or arrangements of any kind, and (iii) all other employee benefit plans, contracts, programs, funds, or arrangements (whether written or oral, qualified or nonqualified, funded or unfunded, foreign or domestic, currently effective or terminated) and any trust, escrow, or similar agreement related thereto, in either caserespect of any Transferred Employees or former employees, are maintaineddirectors, administered or contributed to by the Corporationofficers, shareholders, members, managers, consultants, or which cover any employee or former employee independent contractors of Contributor (all of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be above being hereinafter individually or collectively referred to as the "“Employee Plan” or “Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m,” respectively), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true True and complete copies of the following materials have been delivered or made available to Acquirer: (i) the plan documents for each Employee Plans (Plan and related trust agreements and other funding arrangements, if any, and adoption agreements, if any)all amendments thereto, (ii) any amendments all determination letters from the IRS with respect to each Employee Plan intended to be qualified under Section 401(a) of the Employee PlansCode, (iii) written interpretations all current and prior summary plan descriptions, summaries of material modifications, annual reports, summary annual reports, and any other documents used to communicate the Employee Plans to the plan administrator of such Plan employees, (iv) material employee communications by the plan administrator of any Employee Plan (includingall trust agreements, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA)insurance contracts, and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, other documents relating to the knowledge funding or payment of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against benefits under any Employee Plan, the assets held thereunder(v) all documents, the trustee of any such assetsincluding without limitations, or the Corporation Form 5500, relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, Plan required to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action have been filed prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability hereof with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with Plan, (vi) any communication, opinion, ruling or determination from any Governmental Authority, including the reportingIRS, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge Department of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISALabor, or of Section 4975(c) of the Code Pension Benefit Guaranty Corporation with respect to any Employee Plan. Furthermore, (vii) financial statements and actuarial reports, if any, for each Employee Plan for the three most recently completed plan years or such shorter period as such Employee plan may have been in effect, and (viii) any other documents, forms or other instruments relating to any Employee Plan reasonably requested by Acquirer.
(c) Each Employee Plan has, in all material respects, been maintained, operated, and administered in material compliance with its terms and any related documents or agreements and in compliance with all applicable Laws.
(d) Each Employee Plan intended to be qualified under Section 401(a) of the Code is so qualified and has received a favorable determination letter from the IRS as to the knowledge qualification and the tax exempt status of each trust thereunder, and such determination letter remains in effect and has not been revoked; provided, however, no such determination letter has been received or is in effect as to any such plan which is based on an IRS-approved prototype or mass submitter document. Nothing has occurred that could reasonably be expected to result in the loss of the Corporation qualification of any such Employee Plan or trust under Section 401(a) or 501(a) of the Sellers, Code.
(e) Neither Contributor nor any ERISA Affiliate currently has and at no other "party time in interest," the past has had an obligation to contribute to a “defined benefit plan” as defined in Section 3(143(35) of ERISA, a pension plan subject to the funding standards of Section 302 of ERISA or "disqualified person," Section 412 or 426 of the Code, a “multiemployer plan” as defined in Section 4975(e)(23(37) of ERISA or Section 414(f) of the Code, or a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code.
(f) With respect to each Employee Plan that is a group health plan benefitting any current or former employee of Contributor or any ERISA Affiliate that is subject to Section 4980B of the Code, or was subject to Section 162(k) of the Code, Seller and each ERISA Affiliate has engaged complied, in any such "prohibited transactionall material respects, with (i) the continuation coverage requirements of Section 4980B of the Code and Section 162(k) of the Code, as applicable, and Part 6 of Subtitle B of Title I of ERISA and (ii) the Health Insurance Portability and Accountability Act of 1996, as amended."
(g) No Employee Plan provides benefits, including without limitation, death, disability, death or medical benefits (whether or not insured)benefits, with respect to current or former employees of the Corporation beyond their retirement or other termination of service or retirement other than (i) retirement benefits under a pension plan, or continuation healthcare coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans None of the Acquirer nor any of its Affiliates has any obligation to reimburse, pay or make whole any Person for adverse tax consequences or any related costs (as defined for the purposes of including interest, penalties or additional excise taxes), including consequences or costs arising under Section 4980B 409A, Section 280G or Section 4999 of the Code and Part 6 of Subtitle B of Title I of ERISArelating to any payment made, and all regulations thereunderprovision of, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, omission from or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative operation of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRAEmployee Plan.
(i) To the knowledge of the Corporation and the Sellers, each Pension Each Employee Plan that is "qualified" within the meaning of subject to Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) 409A of the Code materially complies in form and the regulations thereunderin operation with paragraphs (2), (3) and (4) of any Pension PlanCode Section 409A(a).
(j) The Corporation has made all Except as required contributions under each Pension Plan on a timely basis orby law, if not yet due, adequate accruals therefore have been provided for in neither the financial statements. No Pension Plan is subject to Section 302 execution and delivery of ERISA or this Agreement nor the minimum funding standards imposed by Section 412 consummation of the Codetransactions contemplated hereunder, will, either alone or together with some other event, (i) result in any material payment (including severance, unemployment compensation, golden parachute or otherwise) becoming due to any director, officer or any employee under any Employee Plan or otherwise, (ii) materially increase any benefits otherwise payable under any Employee Plan, or (iii) result in any acceleration of the time of payment or vesting of any such benefits to any material extent.
(k) At any time prior the Closing or as soon as reasonably practicable thereafter, the Acquirer will assume each of the Employee Plans, or establish substantially similar replacement plans, at no cost or expense to the date of this Agreement and from such date Transferred Employees or their respective spouses or dependents. Contributor shall cooperate with the Acquirer in all respects to effectuate the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable transfer to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee Acquirer of the Corporation. Such contracts, plans Transferred Employees and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect Plans to Employee Plans or the most recent fiscal year with respect to Benefit Arrangementsbe assumed by Acquirer.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Samples: Contribution and Sale Agreement (American Residential Properties, Inc.)
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is a list identifying each 5.11(a) lists "employee pension benefit plans", as defined in Section 3(3) of ERISA, and all other material employee benefit arrangements or payroll practices, including, without limitation, bonus plans, consulting or other compensation agreements, incentive, equity or equity-based compensation, or deferred compensation arrangements, stock purchase, severance pay and practices, sick leave, vacation pay, salary continuation, disability, hospitalization, medical insurance, life insurance and scholarship programs maintained by Sellers and the Subsidiaries or to which Sellers and the Subsidiaries contributed or are obligated to contribute thereunder for current or former employees of Sellers and the Subsidiaries (the "Employee Benefit Plans"). Neither the Seller or any of the Subsidiaries has, at any time within the last six years, maintained, contributed to, or had any obligation to contribute to, or has any liability (fixed or contingent) with respect to, any plan subject to Title IV of ERISA or to the funding requirements of Section 412 of the Code including any plan which constituted a "multiemployer plan," as defined in Section 3(24001(a)(3) of ERISA or any plan subject to Sections 4063 or 4064 of ERISA (the "Pension Plansmultiple employer plan") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true True, correct and complete copies of (i) the following documents, with respect to each of the Employee Benefit Plans (as applicable), have been made available to Purchaser: (A) any plans and related trust agreements and other funding arrangements, if anydocuments, and adoption agreements, if any)all amendments thereto, (iiB) any amendments the most recent Forms 5500 for the past three (3) years and schedules thereto, (C) the most recent financial statements and actuarial valuations for the past three (3) years, (D) the most recent IRS determination letter, (E) the most recent summary plan descriptions (including letters or other documents updating such descriptions) and (F) written descriptions of all non-written agreements relating to the Employee Benefit Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge Each of the Corporation and Employee Benefit Plans intended to qualify under Section 401 of the Code ("Qualified Plans") has been determined by the IRS to be so qualified, and, except as disclosed on Schedule 5.11(c), to the Knowledge of Sellers, each Employee Plan nothing has been maintained occurred with respect to the operation of any such plan which could reasonably be expected to result in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to revocation of such Employee Planfavorable determination.
(d) To All contributions and premiums required by law or by the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives terms of any of them, against Employee Benefit Plan or any Employee Plan, the assets held thereunder, the trustee of agreement relating thereto have been timely made (taking into account any such assets, or the Corporation relating waivers granted with respect thereto) to any of the Employee Plans, any other employee benefit plans, contracts funds or arrangements, other than ordinary and usual claims for benefits by participants trusts established thereunder or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closingconnection therewith in all material respects.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) None of the Code (an Employee Benefit Plans which are "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transactionwelfare benefit plans" within the meaning of Section 406(a) or 406(b3(1) of ERISAERISA provide for continuing benefits or coverage for any participant or any beneficiary of a participant post-termination of employment except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, or of Section 4975(cas amended ("COBRA").
(f) Each of the Code Employee Benefit Plans has been maintained, in all material respects, in accordance with respect to any Employee Plan. Furthermore, to the knowledge its terms and all provisions of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transactionapplicable Law."
(g) No Employee Plan provides benefitsExcept as set forth on Schedule 2.3(a)(viii) and Schedule 5.11(g) hereto, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees neither the execution and delivery of this Agreement nor the consummation of the Corporation beyond their retirement or other termination of service other than transactions contemplated hereby will (i) coverage mandated by applicable law, result in any payment becoming due to any employee (including severance or transaction bonuses) of a Seller or any of the Subsidiaries; (ii) death, disability or retirement increase any benefits otherwise payable under any Pension Employee Benefit Plan, ; or (iii) deferred compensation benefits accrued as liabilities on result in the financial statements acceleration of the Corporation, time of payment or (iv) vesting of any such benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for Neither the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer Seller nor any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and Subsidiaries has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered incurred or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation incur any actual or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute contingent liability with respect to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closingincluding any withdrawal liability, liable or be required to contribute make any contributions to any "a multiemployer plan, as a result of any of them being members of a "controlled group" (of corporations, or treated as defined in a single employer with, Seller within the meaning of Section 3(37414(b), 414(c), 414(m) or 414(n) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance the Code arising from or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise period prior to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the CodeInitial Closing Date.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is 5.15(a) sets forth a correct and complete list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), of: (i) no Employee Plan or Benefit Arrangement all “employee benefit plans” (as defined in Section 4.23(m3(3) of this Agreement) is maintainedERISA), administered whether or contributed not subject to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any)ERISA, (ii) any amendments to the Employee Plansall bonus, incentive compensation, equity or equity-based compensation, deferred compensation, change in control, severance, retention, termination, retirement, profit sharing, post-retirement or post-termination, medical, dental, disability, life insurance or other death benefits, accident, sick leave, leave of absence, layoff, vacation, salary continuation, loan, educational assistance, scholarship, dependent care assistance, legal assistance, club membership, employee discount and fringe benefit plans, programs, agreements, policies, arrangements or payroll practices, and (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (includingall employment, but not limited toconsulting, summary plan descriptions and summaries of material modifications as defined under ERISA)termination, individual compensation, and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared collective bargaining agreements or arrangements; in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Codecase, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation Company or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Subsidiaries has any obligation or liability (contingent or otherwise) (collectively, the “Company Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries”). Furthermore, there are no pending or, Each Company Plan that is subject to the knowledge ERISA is hereinafter referred to as a “Company ERISA Plan.” None of the Corporation or Company ERISA Plans is subject to Title IV of ERISA, and neither the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to Company nor any of the Employee Plans, Subsidiaries nor any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, business (whether or not incorporated, which ) that is deemed to be under common control control, or affiliated that is treated as a single employer, with the Corporation within the meaning any of them under Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (each, an "“ERISA Affiliate"”) for has ever had any tax, penalty obligation or other liability (contingent or otherwise) with respect to any Employee employee benefit plan subject to Title IV of ERISA.
(b) Correct and complete copies of the following documents with respect to each of the Company Plan andhave been made available or delivered to the Owners by the Company, to the knowledge of extent applicable: (i) the Corporation or most recent document constituting the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administeredCompany Plan, and between the date of this Agreement and the date of Closingrelated trust documents, will administer each Employee Plan in compliance with the reportinginsurance contracts or other funding arrangements, disclosure, fiduciary and all other requirements applicable thereto under amendments thereto, (ii) the most recent summary plan description and all related summaries of material modifications, (iii) the most recent Form 5500 and all schedules thereto, (iv) the most recent IRS determination letter, (v) the most recent actuarial report and financial statements, and (vi) a written description of any non-written Company Plan.
(c) Each Company Plan complies, and has been administered and operated in compliance, in all material respects in accordance with its terms and all provisions of ERISA, the Code and other applicable Laws. Neither the Company nor any of the Subsidiaries nor any “party in interest” or “disqualified person” with respect to the Company ERISA Plans has engaged in a non-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA, and no fiduciary has any material liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company ERISA Plan.
(d) There has been no material violation of ERISA or the Code with respect to the filing of applicable lawreturns, reports, documents and notices regarding any of the Company ERISA Plans with the Secretary of Labor or the Secretary of the Treasury or the furnishing of such notices or documents to the participants or beneficiaries of the Company ERISA Plans.
(e) Each Company ERISA Plan intended to qualify under Section 401 of the Code is so qualified and any trust intended to be exempt from Federal income taxation under Section 501 of the Code is so exempt, and the Company is not aware of any circumstance likely to cause the loss of such qualification or exemption or the imposition of any liability, penalty or tax under ERISA or the Code.
(f) To the knowledge Except as set forth on Schedule 5.15(f), each Option is exempt from Section 409A of the Corporation Code based upon the current “good faith” compliance standard under Section 409A and Sellersthe regulations thereunder. Each Company Plan that is subject to Section 409A of the Code has been administered and operated in good faith compliance, in all material respects with Section 409A of the Corporation Code, taking into consideration the proposed regulations and rulings under Section 409A, including the transitional rules.
(g) Except as set forth on Schedule 5.15(g), no current or former director, officer, employee, contractor or consultant of the Company or any of the Subsidiaries is entitled to any gross-up, make-whole or other additional payment from the Company or any of the Subsidiaries in respect of any Tax (including Federal, state, local and foreign income, excise and other taxes (including taxes imposed under Sections 280G or 409A of the Code)) or interest or penalty related thereto.
(h) All contributions, premiums and other payments required by Law or by the terms of any Company ERISA Plan (including workers compensation) or any agreement relating to such Company ERISA Plan to any fund or trust established thereunder or in connection therewith have been made by the due date thereof (including any valid extension), and all contributions for any period ending on or before the Closing Date that are not yet due will have been paid or sufficient accruals for such contributions and other payments in accordance with GAAP are duly and fully provided for on the Balance Sheet.
(i) None of the Company, any of the Subsidiaries, any ERISA Affiliate or any organization to which the Company, any of the Subsidiaries or any ERISA Affiliate is a successor or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" owner corporation within the meaning of Section 406(a) or 406(b4069(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, ERISA has engaged in any such "prohibited transactiontransaction within the meaning of Section 4069 or 4212(c) of ERISA."
(gj) No Employee Plan provides There are no pending actions, claims or lawsuits that have been asserted or instituted against the Company ERISA Plans, the assets of any of the trusts under the Company ERISA Plans, or the plan sponsor, plan administrator or any fiduciary of any of the Company ERISA Plans with respect to the administration or operation of any of the Company ERISA Plans (other than routine benefit claims), nor does the Company have any Knowledge of facts that could form the basis for any such claim or lawsuit.
(k) Except as set forth on Schedule 5.15(k), none of the Company or any of the Subsidiaries provides, or is obligated to provide, any life insurance or health benefits, including without limitation, death, disability, or medical benefits prescription drugs (whether or not insured), with respect ) to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or individual after his or her beneficiary).
(h) The Welfare Plans that are group health plans (termination of employment or service with the Company or any of the Subsidiaries, except as defined for the purposes of may be required under Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, ERISA and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any expense of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation individual or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the individual’s beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation Except as set forth on Schedule 5.15(l), neither the execution and its ERISA Affiliates have not beendelivery of this Agreement nor the consummation of the transactions contemplated hereby will, nor will they become through either alone or in combination with another event, (i) result in any payment becoming due, increase the date amount of Closingcompensation due, liable to contribute or result in any forgiveness of loan indebtedness to any "multiemployer plan" current or former employee, officer, director or consultant of the Company or any of the Subsidiaries, (as defined ii) increase any benefits otherwise payable under any Company Plan, or (iii) result in Section 3(37) the acceleration of ERISA)the time of payment or vesting of any such compensation or benefits.
(m) Schedule 4.23(mAny individual who performs services for the Company or any of the Subsidiaries (other than through a contract with an organization other than such individual) contains a list identifying each employment, severance and who is not treated as an employee of the Company or similar contract, arrangement any of the Subsidiaries for federal income tax purposes by the Company or policy (exclusive any of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) Subsidiaries is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to for such Benefit Arrangementspurposes.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is 3.15(a) contains a complete and correct list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee all of the CorporationBusiness Employees as of the date hereof, showing for each Business Employee, position held, service date, annual salary, wages and/or commissions and last bonus paid. Collectively, None of the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) Business Employees is maintained, administered or contributed to covered by any entity union, collective bargaining or other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plansimilar labor agreements.
(b) Sellers have delivered Each material employee benefit plan within the meaning of Section 3(3) of ERISA (whether or will deliver not such plan is subject to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangementsERISA excluding any plan, if anyfund, and adoption agreements, if anyprogram or arrangement sponsored by a Governmental Authority), (ii) maintained by any amendments Seller, Selling Corporation or Conveyed Company with respect to the any Business Employee Plans, (iii) written interpretations or to which any of the foregoing Persons contributes (or has any obligation to contribute) or is a party that affords coverage or benefits to or gives rise to any Liability in favor of, any Business Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any each an “Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISABenefit Plan”), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reportsis listed on Schedule 3.15(b).
(c) To the knowledge Except as set forth on Schedule 3.15(c) and regardless of the Corporation and the Sellerswhether ERISA applies to such plan excluding any plan, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed fund, program or arrangement sponsored by any and all statutesa Governmental Authority, orders, rules and regulations, including but not limited no Conveyed Company maintains or contributes to, ERISA and or has any obligation to contribute to any “employee pension benefit plan,” within the Codemeaning of Section 3(2) of ERISA, which are applicable to such Employee Planthat is a “multiemployer plan,” within the meaning of Section 3(37) of ERISA.
(d) To Except as set forth on such Schedule 3.15(d), or to the knowledge extent that any breach of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described representations set forth in this subsection are initiated prior sentence would not reasonably be expected to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by have a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending Material Adverse Effect on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than Business: (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of each Employee Benefit Plan which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue intended to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "be “qualified" ” within the meaning of Section 401(a) of the Code, and Code has been qualified during the period received a favorable determination letter from the date IRS (or has submitted, or is within the remedial amendment period for submitting, an application for a determination letter with the IRS and is awaiting receipt of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(aa response) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings orand, to the knowledge Knowledge of the Corporation or the Sellers, threatened proceedings no event has occurred and no condition exists which could reasonably be expected to result in which the "qualified status of any Pension Plan is at issue and in which revocation of or other adverse outcome or disposition with respect to any such determination; (ii) no Conveyed Company, nor, to the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt Knowledge of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination any other “disqualified person” or “party in interest” (as defined in Section 411(d4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in any transactions in connection with any Employee Benefit Plan that could reasonably be expected to result in the regulations thereunderimposition of a penalty pursuant to Section 502 of ERISA or a tax pursuant to Section 4975 of the Code; (iii) no claim, of any Pension Plan.
(j) The Corporation action or litigation has made all required contributions under each Pension Plan on a timely basis been made, commenced or, if not yet dueto the Knowledge of Sellers, adequate accruals therefore have threatened with respect to any Employee Benefit Plan (other than routine claims for benefits payable in the ordinary course, and appeals of denied such claims); and (iv) each Employee Benefit Plan sponsored by a Conveyed Company has been maintained in compliance in all material respects with applicable Laws and all terms and conditions as provided for in the financial statements. No Pension Plan is subject applicable agreements, instruments and other documentation governing or applicable to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Codesuch Employee Benefit Plans.
(ke) At any time prior Each Conveyed Company and, to the date extent relating to or arising from obligations under any Employee Benefit Plan relating to EU Business Employees, each Asset Selling Corporation has paid and discharged all of this Agreement its Liabilities and from such date to obligations arising under ERISA, the date Code or any comparable Laws, Governmental Orders or other requirements of ClosingLaw in any non-US jurisdictions which, neither if unpaid or unperformed, would result in the Corporation nor imposition of a Lien against any of its ERISA Affiliates have at any time participated in the Purchased Assets or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance properties or similar contract, arrangement or policy (exclusive assets of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Conveyed Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Videsh Sanchar Nigam LTD)
Employee Benefits Plans. (a) Attached hereto to the Disclosure Schedule as Schedule 4.23(a)(1)5.13, is a list identifying description of all employee benefit plans sponsored, maintained, or contributed to, by the Company for the benefit of the Company's employees or has been sponsored, maintained or contributed to anytime during the Company's existence, including the following plans:
(i) each "employee pension benefit plan," plan as such term is defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1ss. 3(3) of ERISA, including but not limited to employee benefit plans which are not subject to the provisions of ERISA (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be collectively referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m"), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and ;
(ii) no Employee Plan is maintained under any trust each written personnel policy, stock option plan, collective bargaining agreement, bonus plan or arrangement, incentive award plan or arrangement, vacation policy, severance pay policy or agreement, deferred compensation agreement or arrangement which covers any and each other written employee benefit arrangement plan, agreement, arrangement, program, practice or understanding which is not an Employee Plandescribed in Section 5.13(i) above ("Benefit Programs").
(b) Sellers have delivered or will deliver to Buyer true True, correct and complete copies of (i) each of the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions related trusts and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required)Benefit Programs, including all attachments (including without limitation the actuarial valuation reports)amendments thereto, have been furnished to Renex and Buyer.
(c) To There has been furnished to Renex and Buyer, with respect to all Plans or Benefit Programs required to comply with ERISA, all reports and summary plan descriptions. Except as otherwise set forth in the knowledge Disclosure Schedule:
(i) the Company does not contribute to or have any obligation to contribute to, and has not at any time contributed to or had an obligation to contribute to, a multi-employer plan within the meaning of ss. 3(37) of ERISA ("Multi-Employer Plan") or a multiple employer plan within the meaning of ss. 413(b) and (c) of the Corporation and Internal Revenue Code of 1986, as amended (the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the "Code, which are applicable to such Employee Plan.");
(dii) To the knowledge of the Corporation and the Sellers, there are no pending or, Company has performed all obligations due to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action be performed prior to the date hereof, whether arising by operation of Closing.
(e) No liability has been incurred by the Corporation law or by a trade or business, whether or not incorporated, which is deemed contract required to be under common control or affiliated performed by it in connection with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, Benefit Programs and to the knowledge of the Corporation Company and the Member, there have been no defaults or violations by any other party to the SellersPlans or Benefit Programs.
(iii) all reports and disclosures relating to the Plans required to be filed with or furnished to governmental agencies, threatened claimsPlan participants or Plan beneficiaries have been filed or furnished in accordance with applicable law in a timely manner and each Plan and each Benefit Program has been administered in compliance with its governing documents;
(iv) each of the Plans intended to be qualified under ss. 401 of the Code satisfies the requirements of the Code and has received a favorable determination letter from the Internal Revenue Service regarding such status and has not, since receipt of the most recent favorable determination letters, been amended or operated in a way which could adversely affect such qualified status;
(v) there are no actions, suits, or claims pending (other proceedings by any employee, former employee, participants than routine claims for benefits) or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or Company and the SellersMember, threatened proceedings in which the "qualified status of against or with respect to, any Pension Plan is at issue and in which revocation of the determination letter Plans, Benefit Programs or their respective assets;
(vi) all contributions required to be made to the Plans and Benefit Programs pursuant to their respective terms and provisions and applicable law have been timely made;
(vii) as to any Plan subject to ERISA, no event or condition which presents a risk of Plan termination or accumulated funding deficiency within the meaning of ss. 302 of ERISA or ss. 412 of the Code has occurred. No reportable event within the meaning of ss. 4043 of ERISA has occurred, no notice of intent to terminate the Plans has been threatened. Each such Pension given, no proceeding to terminate the Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellersinstituted, there has been no partial termination of the Plan and no liability to the Pension Benefit Guaranty Corporation has been incurred;
(viii) to the knowledge of the Company and the Member, none of the Plans or their trustees has engaged in any prohibited transactions or party in interest transactions as such terms are defined in Section 411(d) ss. 4975 of the Code and the regulations thereunder, ss. 406 of any Pension Plan.ERISA;
(jix) The Corporation has made all required contributions under each Pension there is no matter pending with respect to any Plan on a timely basis oror Benefit Program before the Internal Revenue Service, if not yet duethe U.S. Department of Labor, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.Pension Benefit Guaranty Corporation;
(kd) At any time prior to Except as otherwise set forth on the date Disclosure Schedule, neither the execution or delivery of this Agreement and from such date to or the date consummation of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.transactions contemplated hereby will:
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers entitle any employee current or former employee of the Corporation. Such contractsCompany to severance pay, plans and arrangements are hereinafter referred to collectively as unemployment compensation or any similar payment all of which if payable shall be paid by the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.Company;
(nii) There has been no amendment to, written interpretation accelerate the time of payment or announcement (whether vesting or not written) by cause any increase in the Corporation relating to, or change in employee participation or coverage under, amount of any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining compensation due to any such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, employee; or
(iii) directly or indirectly, indirectly result in any payment made to or on behalf of any amount that would not be deductible pursuant person to constitute a parachute payment within the terms meaning of Section 280G ss. 280B of the Code.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto Schedule 4.14(a) lists each material Applicable Benefit Plan of such Investor’s Acquired Entities. The term “Applicable Benefit Plan” shall mean, as Schedule 4.23(a)(1)to a given Investor, is a list identifying each "“employee pension benefit plan," as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement ” (as defined in Section 4.23(m3(3) of this Agreementthe Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), “multiple employer welfare arrangement” (as defined in Section 3(40) is maintainedof ERISA), administered severance, employment, change-in-control, equity or cash incentive, and any other employee (or post-employment) benefit plans, programs, agreements or other arrangements which are contributed to to, sponsored by or maintained by any entity of such Investor’s Acquired Entities and as to which any such Acquired Entity has any obligation or liability, contingent or otherwise, for current or former employees or directors of any such Acquired Entity, in each case other than any governmental or other statutorily mandated plan or program. Each Investor has made available to the Corporationother Investor correct and complete copies of: (i) each Applicable Benefit Plan (or, and in the case of any such Applicable Benefit Plan that is unwritten, descriptions thereof); (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
for the most recent year (b) Sellers have delivered or will deliver to Buyer true and complete copies of (iA) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete on Form 5500 series) prepared in connection and attached schedules required to be filed with the IRS with respect to each Employee Applicable Benefit Plan (if any such report was required)) and (B) audited financial statements, including all attachments if applicable; (including without limitation iii) the actuarial valuation reports).
most recent summary plan description for each Applicable Benefit Plan for which such summary plan description is required; and (civ) To the knowledge of the Corporation each trust agreement, insurance or group annuity contract, and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation funding arrangements relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Applicable Benefit Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1)2.17 lists all bonus, is a list identifying each "deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee pension benefit plan," as defined in Section 3(2) of ERISA (the "Pension Plans") stock ownership, stock bonus, stock purchase, restricted stock and as Schedule 4.23(a)(2)stock option plans, a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISAall employment or severance contracts, (the "Welfare Plans") thathealth and medical insurance plans, in either caselife insurance and disability insurance plans, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered plans, contracts or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (arrangements including, but not limited to, summary plan descriptions "employee benefit plans" within the meaning of Section 3(3) of ERISA (the "Employee Benefit Plans") which cover any current or (to the extent currently in effect) former employee, officer, director or consultant of CoMed or any portion of the Business. Schedule 2.17 separately identifies all Deferred Compensation Liabilities and summaries all Employee Benefit Plans providing retiree benefits and a calculation of the present value of all retiree Liabilities. All Employee Benefit Plans have been established and maintained in accordance with their terms. No Employee Benefit Plan is or was collectively bargained for. The Employee Benefit Plans which are described in Section 3(3) of ERISA (the "ERISA Plans") are in material modifications as defined compliance with all provisions of ERISA, other applicable Laws and, if intended to be tax qualified, Sections 401(a) and 501(a) of the Code. All ERISA Plans which are intended to qualify under ERISA)Section 401(a) of the Code have been submitted to and approved under Section 401(a) of the Code by the IRS and, and (v) to the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the best knowledge of the Corporation CoMed and the SellersShareholders, nothing has occurred which would cause the loss of such tax qualification. No Liability under ERISA has been or is expected to be incurred by CoMed or any Affiliate of CoMed with respect to any ongoing, frozen or terminated "single-employer plan," within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them, or the single-employer plan of any entity which is considered one employer with CoMed under Section 4001 of ERISA or Section 414 of the Code (an "ERISA Affiliate"). CoMed and its Affiliates have not incurred and do not expect to incur any Liability with respect to a multi-employer plan under Subtitle E of Title IV of ERISA (regardless of whether based on contributions of an ERISA Affiliate) and have not made and are not obligated to make any contributions to any multi-employer plan. All contributions required to be made under the terms of any Employee Benefit Plan have been timely made or have been duly provided for. No single-employer plan of CoMed or any ERISA Affiliate of CoMed has any unfunded pension liability or any "accumulated funding deficiency" (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA. No Reportable Event has occurred with respect to any ERISA Plan. Neither CoMed nor any of its Affiliates has provided, or is required to provide, security to any single-employer plan of an ERISA Affiliate pursuant to Section 401 (a) of the Code. CoMed and each Employee ERISA Affiliate have paid all premiums (together with any interest, charges or penalties for late payment thereon) required to be paid to the Pension Benefit Guaranty Corporation with respect to each ERISA plan for which such premiums are required. No ERISA Plan has been maintained engaged in all material respects any transaction described in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, Section 406 or 407 of ERISA and or Section 4975 of the Code, which are applicable to such . Each ERISA Plan has at all times complied with the bonding requirements of Section 412 of ERISA. Each Employee Plan.
Benefit Plan can be unilaterally terminated without penalty by CoMed on no more than sixty (d60) To the knowledge of the Corporation and the Sellers, there days' notice. There are no pending or, to the knowledge of the Corporation CoMed or the SellersShareholders, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation Claims relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangementsBenefit Plan, other than ordinary and usual claims routine Claims for benefits by participants in the ordinary course, asserted against (i) any Employee Benefit Plan or beneficiaries. Furthermoreits assets, there are no pending (ii) CoMed or any ERISA Affiliate, or (iii) any fiduciary, for which CoMed may be directly or indirectly liable, through indemnification obligations or otherwise.
(b) With respect to each Employee Benefit Plan, CoMed and the Shareholders have made available to DHT a current, accurate and complete copy (or, to the knowledge of the Corporation or the Sellersextent no such copy exists, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
an accurate and complete description) thereof (eincluding all amendments thereto which will become effective at a later date) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellersextent applicable, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable lawany related trust agreement, annuity contract or other funding instrument, (ii) death, disability or retirement benefits under any Pension Planthe most recent summary plan description, (iii) deferred compensation benefits accrued as liabilities on the most recent annual report form (FORM 5500 series), financial statements of the Corporation, or statement and actuarial report and (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent IRS determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Samples: Merger Agreement (Dynamic Healthcare Technologies Inc)
Employee Benefits Plans. (a) Attached hereto as Section 5.16(a) of the Company Disclosure Schedule 4.23(a)(1)sets forth a complete and correct list of the material Benefit Plans. For purposes of this Agreement, is a list identifying “Benefit Plan” means each "“employee pension benefit plan," ” (as that term is defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(13(3) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan each pension, retirement, profit-sharing, deferred compensation, equity or Benefit Arrangement (as defined in Section 4.23(m) equity-based, health and welfare, severance pay, vacation, bonus, incentive, fringe benefit, retention, employment or each change of this Agreement) control plan or agreement that is maintained, administered sponsored or contributed to by any entity other than of the CorporationFairway Group Companies for the benefit of their employees, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Planofficers or directors.
(b) Sellers have delivered or will deliver For each material Benefit Plan, the Company has made available to Buyer true and complete copies of Purchaser the following (to the extent applicable): (i) the Employee Plans (current plan document and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), all amendments thereto; (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, most recent summary plan descriptions description (and any summaries of material modifications as defined under ERISAwith respect thereto), and ; (viii) the three most recent annual reports (e.g., the complete on Form 5500 series(with all accountants’ opinions, schedules and attachments); (iv) prepared in connection the most recent IRS opinion or determination letter; (v) any current insurance policy that implements the terms of such Benefit Plan; and (vi) the current trust document with each Employee Plan (if respect to any such report was required), including all attachments (including without limitation the actuarial valuation reports)Benefit Plan.
(c) To the knowledge of the Corporation and the Sellers, each Employee No Benefit Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable is a “defined benefit plan” subject to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) 412 of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) Title IV of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "“multiemployer plan" ” (as defined in Section 3(37) of ERISA). No Fairway Group Company sponsors, maintains or contributes to, or has any liability (including liability on account of being considered a single employer under Section 414 of the Code with any other Person) with respect to, a plan that is subject to Title IV of ERISA.
(md) Schedule 4.23(mEach Benefit Plan has been maintained, funded and administered in compliance, in all material respects, with its terms and the applicable provisions of ERISA and the Code. Each Benefit Plan that is intended to meet the requirements of a “qualified plan” under Sections 401(a) contains or 501(c)(9) of the Code has received a list identifying favorable determination, opinion, or approval letter from the IRS. With respect to each employmentBenefit Plan, severance all material contributions, distributions, reimbursements and premium payments that are due have been timely made. No Fairway Group Company is liable for any material tax or similar contractpenalty with respect to any Benefit Plan, arrangement including any liability imposed by under ERISA Section 502, ERISA Section 4071, or policy Chapter 43 of the Code and to the Knowledge of the Company no facts exist which would be reasonably expected to trigger such material taxes or penalties.
(exclusive e) No Legal Proceeding (other than routine claims for benefits) has been instituted or, to the Knowledge of the Company, threatened against any such contract which is terminable Benefit Plan. There have been no “prohibited transactions” within thirty the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA and no breaches of fiduciary duty (30as determined under ERISA) days without with respect to any Benefit Plan, in each case that would result in material liability to any Fairway Group Company.
(f) Except as provided in Section 5.16(f) of the Sellers and the Corporation)Company Disclosure Schedule, and each plan no Fairway Group Company maintains or arrangement providing for insurance coverage (including has any selfobligation to provide any post-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation termination or post-retirement compensation health or benefit which (i) is not an Employee Planlife insurance benefits to any Person, (ii) has been entered into or maintained, except as the case may be, be required by the Sellers or the Corporation, and (iii) covers any employee or former employee Section 4980B of the Corporation. Such contracts, plans Code and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies Section 601 of ERISA (“COBRA”) or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are other applicable to such Benefit ArrangementsLaw.
(ng) There has been no amendment toExcept as set forth on Section 5.16(g) of the Company Disclosure Schedule, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense execution and delivery of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans this Agreement or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee consummation of the Corporation thatTransaction (either alone or in combination with another event) will not result in the payment of any amount under any arrangements in effect on the date of this Agreement that would, individually or in aggregatecombination with any other such payment, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms as a result of Section 280G of the Code. Except as set forth in Section 5.16(g) of the Company Disclosure Schedule, the Transaction alone, or in a combination with any other event, will not accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any employee, officer or director of any of the Fairway Group Companies under any Benefit Plan.
(h) No asset of any of the Fairway Group Companies is subject to any security interest or lien under the Code relating to the Benefit Plans or under Title I or Title IV of ERISA, including ERISA Section 4068 or arising out of any action filed under ERISA Section 4301(b).
(i) No Fairway Group Company has incurred any liability which could subject any of its assets to liability under ERISA Section 4062, 4063, 4064 or 406.
(j) No Fairway Group Company has incurred or been assessed any withdrawal liability within the meaning of ERISA Section 4201 or any contingent withdrawal liability under ERISA Section 4204 to any multiemployer plans as defined by ERISA Section 4001(3) (a “Multiemployer Plan”).
(k) No event has occurred or is reasonably expected to occur (including in connection with this transaction) with respect to any Fairway Group Company that could reasonably be expected to result in an assessment of withdrawal liability within the meaning of ERISA Section 4201 or any contingent withdrawal liability under ERISA Section 4204 to any Multiemployer Plan.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto as Section 4.15(a) of the Seller Disclosure Schedule 4.23(a)(1identifies each material Business Employee Benefit Plan. Seller has provided or made available to Buyer with respect to each Business Employee Benefit Plan, to the extent applicable, complete and correct copies of (i) the plan documents (including any trusts or other agreements that implement such plan), is a list identifying each "employee pension benefit plan," as defined in Section 3(2(ii) the most recent summary plan description together with the summary(ies) of material modifications thereto, if any, required under ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying with respect to each "employee welfare benefit plan," as defined in Section 3(1) of Business Employee Benefit Plan subject to ERISA, (iii) the "Welfare Plans"most recent summary plan description (or a description of such plan) thatwith respect to each Business Employee Benefit Plan not subject to ERISA, in either case(iv) the most recent annual report (Form 5500, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(mwith all applicable attachments), (iv) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporationall related trust agreements and insurance contracts, and (iivi) no the most recent independent auditor’s report(s) and other funding arrangements that implement each Business Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Benefit Plan.
(b) Sellers have delivered Each Business Employee Benefit Plan and each funding vehicle related to such Business Employee Benefit Plan is currently in compliance in all material respects with, and has been, funded, contributed to (including all employer and employee contributions), administered and operated in material compliance with, its terms, the terms of any applicable collective bargaining agreement and all applicable Laws. Each Business Employee Benefit Plan that is intended to be a “qualified plan” as described in Section 401(a) of the Code has been determined by the IRS to so qualify and such plan has received an opinion, advisory or will deliver determination letter stating that such plan is qualified, and, to Seller’s Knowledge, there are no facts that would adversely affect such qualification. Seller has provided or made available to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required)opinion, including all attachments (including without limitation the actuarial valuation reports)advisory or determination letter with respect to each applicable Business Employee Benefit Plan.
(c) To Except as would not be expected to result in material Liability to Buyer, (i) no “prohibited transaction,” within the knowledge meaning of Section 4975 of the Corporation Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Business Employee Benefit Plan; (ii) there are no actions, suits or claims pending or, to the SellersKnowledge of Seller, each threatened or reasonably anticipated (other than routine claims for benefits) against any Business Employee Benefit Plan has been maintained in all material respects in compliance or against the assets of any Business Employee Benefit Plan; and (iii) there are no audits, inquiries or proceedings pending or, to the Knowledge of Seller, threatened by the IRS, DOL, or any other Governmental Authority with its terms and the requirements prescribed by respect to any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Business Employee Benefit Plan.
(d) To Neither Seller nor its ERISA Affiliates maintains, sponsors, contributes to or has any Liability or potential Liability with respect to (i) any “defined benefit plan” as defined in Section 3(35) of ERISA or any other plan subject to the knowledge funding requirements of Section 412 of the Corporation and the SellersCode or Section 302 of Title IV of ERISA, there are (ii) any “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA, (iii) any employee benefit plan, program or arrangement that provides for post-retirement medical, life insurance or other welfare-type benefits (other than health continuation coverage required by COBRA at no pending orcost to Seller or its ERISA Affiliates), to the knowledge (iv) any multiple employer plan, or (v) any plan described in Section 413 of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any Code. Except as set forth in Section 4.15(d) of the Employee PlansSeller Disclosure Schedule, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge none of the Corporation Business Employee Benefit Plans constitutes a top hat plan or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closingself-insured “group health plan”.
(e) No liability has been incurred Except as set forth in Section 4.15(e) of the Seller Disclosure Schedule, the employment of each Business Employee is terminable by Seller or its Subsidiaries at will, and no Business Employee is entitled or eligible to receive severance pay, pay in lieu of notice, or other termination pay or benefits from Seller or its Subsidiaries following the Corporation termination of such Business Employee’s employment or by a trade service with Seller or businessits Subsidiaries.
(f) The Closing will not give rise to the payment of any remuneration, payments or benefits or any enhancements or accelerations thereof to any Business Employee, whether or not incorporated, which is deemed to be under common control or affiliated in accordance with the Corporation standard terms and conditions of employment of such Employee or otherwise, except as contemplated by this Agreement. No payment or benefit which has been, will be or may be made with respect to any Business Employee will, or could reasonably be expected to, be characterized as a “parachute payment,” within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o280G(b)(2) of the Code (an "ERISA Affiliate") for any tax, penalty in connection with or other liability with respect to any Employee Plan and, to the knowledge as a result of the Corporation Transactions, either alone or the Sellers, such Plans do not expect in conjunction with any other event (whether contingent or otherwise). There is no Contract to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code which Seller or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in its Subsidiaries is a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of which it is bound to compensate any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided Business Employee for in the financial statements. No Pension Plan is subject excise Taxes paid pursuant to Section 302 of ERISA or the minimum funding standards imposed by Section 412 4999 of the Code.
(kg) At Except as would not reasonably be expected to result in any time prior Liability to Buyer or adversely affect the date ability of this Agreement and from such date Buyer to the date of Closingenter into new employment arrangements with Business Employees, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer each Business Employee Benefit Plan that is a “nonqualified deferred compensation plan" ” (as defined for purposes of Code Section 409A(d)(1)) has been, in documentary and operational compliance with Code Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers 409A and the Corporation), and each plan applicable guidance issued thereunder. No Business Employee has a right to any tax gross up or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred tax Liability indemnification in respect of such any payments or benefits under any Business Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit ArrangementsPlan.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integrated Device Technology Inc)
Employee Benefits Plans. (a) Attached hereto as Section 3.15(a) of the Company Disclosure Schedule 4.23(a)(1sets forth a true and complete list of all material Benefit Plans (other than individual Contracts with any employees of the Acquired Companies that can be terminated by the Acquired Companies without penalty or further obligation or liability upon thirty (30) calendar days’ (or less) prior written notice).
(b) For each Benefit Plan, the Company has provided or made available to Parent the following, to the extent applicable: (i) the plan document (or, in the case of an unwritten Benefit Plan, a written description of the material terms thereof) and all amendments thereto; (ii) the most recent summary plan description (and any summaries of material modifications with respect thereto); and (iii) the most recent annual report on Form 5500 (with schedules and attachments), (iv) all determination, opinion or advisory letters from the IRS with respect to any Benefit Plan intended to be qualified under Section 401(a) of the Code; (v) the most recent actuarial reports; (vi) nondiscrimination testing for the most recently completed three plan years; (vi) copies of any material notices to or from the IRS or any office or representative of the U.S. Department of Labor or any Governmental Authority dated within the past three years (or such longer period if the matter contained in such notice is a list identifying each "employee pension currently unresolved) relating to any compliance issues; and (vii) all current trust agreements and insurance contracts relating to the funding or payment of benefits.
(c) No Acquired Company participates in or contributes to or has any liability (contingent or otherwise) with respect to any “defined benefit plan," ” as defined in Section 3(23(35) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2)ERISA, a list identifying each "employee welfare benefit pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code or a “multiemployer plan," ” as defined in Section 3(13(37) of ERISA, ERISA or Section 414(f) of the Code (the "Welfare Plans"“Multiemployer Plan”).
(d) that, in either case, are maintained, administered or contributed With respect to by the Corporation, or which cover each group health plan benefiting any employee current or former employee of the Corporation. CollectivelyCompany or any member of the Controlled Group that is subject to Section 4980B of the Code, the Pension Plans Company and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations each member of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained Controlled Group have complied in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other continuation coverage requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA. No Acquired Company has any obligation to contribute to any funded or unfunded Employee Welfare Plan, Multiemployer Plan or other plan which provides post-retirement health, accident or life insurance benefits to current or former employees, current or former independent contractors, current or future retirees, their spouses, dependents or beneficiaries, other than health benefits required to be provided to former employees, their spouses and other dependents under Code Section 4980B or similar laws.
(e) Except as set forth in Section 3.15(e) of the Company Disclosure Schedule, each Benefit Plan has complied and is now in compliance with all the provisions of ERISA, the Code and all Laws and regulations applicable to such Benefit Plans, and all regulations thereundereach Benefit Plan has been established, ("COBRA")maintained, administered, operated and funded in accordance with its terms and any related documents or agreements. Each Benefit Plan that is intended to be qualified under Section 401(a) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through Code has received a favorable determination letter from the date IRS that the Benefit Plan is so qualified or is operated under the terms of Closing, with a pre-approved plan for which the notification and written notice requirements provider of COBRA. There are no pendingthe plan has received an IRS opinion or advisory letter that the Benefit Plan is so qualified, and to the knowledge Company’s Knowledge no event has occurred, and no condition or circumstance exists, that would reasonably be expected to result in the loss of qualified status of each such Benefit Plan. All benefits, contributions and premiums required by and due under the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative terms of any such person, involving the failure of any Welfare each Benefit Plan or of any other group health plan ever maintained by the Corporation to comply applicable Law have been timely paid or accrued in accordance with the health care continuation coverage requirements terms of COBRAsuch Benefit Plan, the terms of all applicable Laws and GAAP.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of The ESOP constitutes an “employee stock ownership plan” under Section 401(a4975(e)(7) of the Code, Code and the regulations promulgated thereunder and Section 407(d)(6) of ERISA and the regulations promulgated thereunder and has been qualified during the period received a favorable determination letter from the date of its adoption IRS to that effect; (ii) the date of this Agreement, and each trust created thereunder ESOP is tax-exempt from federal income Tax under Section 501(a) of the Code. The Sellers have delivered or will deliver to ; (iii) the Buyers ESOP has complied with the latest determination letters requirements of Section 401(a)(28) of the Internal Revenue Service relating to each Pension Plan. Such determination letters Code; (iv) all Shares owned by the ESOP are and have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan at all times constituted “employer securities” as that term is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d409(l) of the Code and the regulations thereunder, “qualifying employer securities” as defined in Section 407(d)(5) of any Pension PlanERISA.
(jg) To the Knowledge of the Company, there have not been any non-exempt prohibited transactions (within the meaning of Section 406 of ERISA or Section 4975 of the Code) or breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Benefit Plans that could result in any material liability or excise tax under ERISA or the Code being imposed on any Acquired Company.
(h) The Corporation Acquired Companies are in material compliance with, and have during the past three (3) years complied in all material respects with, the applicable provisions of the Patient Protection and Affordable Care Act (the “Affordable Care Act”), and no event has made all required contributions occurred, and no condition or circumstance exists, that could reasonably be expected to subject the Company to any material liability, penalties, or Taxes under each Pension Sections 4980D or 4980H of the Code or any other provision of the Affordable Care Act.
(i) Each Benefit Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 409A of ERISA the Code (if any) is in compliance in all material respects therewith, such that no Taxes or the minimum funding standards imposed by Section 412 interest will be due and owing in respect of such Benefit Plan failing to be in compliance therewith. The Acquired Companies have no obligation to “gross-up” or otherwise indemnify any individual for any Tax, including under Sections 409A and 4999 of the Code.
(j) There is no pending or, to the Company’s Knowledge, threatened Legal Proceeding (other than routine claims for benefits) relating to any Benefit Plan or related trusts and, since January 1, 2015, none of the Benefit Plans or related trusts have been under audit or investigation by the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Authority.
(k) At The Acquired Companies have not been assessed and have no Knowledge of any time prior to proposed assessment of any Taxes under Sections 4980D or 4980H of the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISACode.
(l) The Corporation and its ERISA Affiliates have Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in combination with any other event(s), directly or indirectly, result in any payment or benefit that would not beenbe nondeductible to the payor under Section 280G of the Code or any amount that could, nor will they become through individually or in combination with any such payment, constitute an “excess parachute payment” within the date meaning of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37280G(b) of ERISAthe Code (or any corresponding provisions of state, local or foreign Tax Laws).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee Each of the Corporation. Such contractsAcquired Companies incorporated in Mexico is in compliance in all material respects with applicable Mexican employee benefits Laws (including, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year avoidance of doubt, with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangementsself-determined, good faith calculations of required social-security contribution quotas).
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Samples: Merger Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is a list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA ERISA, including any "multiemployer plan," as defined in Section 3(37) of ERISA, (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports) and (vi) the three most recent actuarial valuation reports prepared in connection with each Employee Plan (if any such report was required).
(c) To the knowledge of the Corporation and the Sellers, each Each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there There are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the The Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the The Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.Employee
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is a list identifying each "employee pension benefit plan," as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on part of any Confidentiality Agreement entered into in the Ordinary Course of Business, Schedule 4.23(a)(13.15(a) sets forth a correct and Schedule 4.23(a)(2) and on Schedule 4.23(m), complete list of: (i) no Employee Plan or Benefit Arrangement all “employee benefit plans” (as defined in Section 4.23(m3(3) of this AgreementERISA), (ii) is maintainedall employment, administered consulting, non-competition, employee non-solicitation, employee loan or contributed to by any entity other than the Corporationcompensation agreements, and all collective bargaining agreements, and (iiiii) no Employee all bonus or other incentive compensation, equity or equity-based compensation, stock purchase, deferred compensation, change in control, severance, leave of absence, vacation, salary continuation, medical, life insurance or other death benefit, educational assistance, training, service award, section 125 cafeteria, dependant care, pension, welfare benefit or other material employee or fringe benefit plans, policies, agreements or arrangements, in each case as to which the Company or any of its Subsidiaries has any obligation or liability, contingent or otherwise, thereunder for current or former employees, directors or individual consultants of the Company or any of its Subsidiaries (collectively, the “Company Plans”). Each Company Plan that is maintained under any trust arrangement which covers any employee benefit arrangement which subject to Title IV of ERISA or Section 412 of the Code (“Title IV Plan”) or is not an Employee a “multiemployer plan” (as defined in Section 3(37) of ERISA (“Multiemployer Plan”)) is separately identified on Schedule 3.15(a).
(b) Sellers have delivered or will deliver to Buyer true Correct and complete copies of the following documents with respect to each of the Company Plans (other than a Multiemployer Plan) have been made available or delivered to Purchaser by the Company, to the extent applicable: (i) the Employee Plans (any plans and related trust agreements and documents, insurance contracts or other funding arrangements, if any, and adoption agreements, if any), all amendments thereto; (ii) any amendments to the Employee Plansmost recent Forms 5500 and all schedules thereto, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan most recent actuarial report, if any; (iv) material employee communications by the plan administrator of any Employee Plan most recent IRS determination letter; (including, but not limited to, iv) the most recent summary plan descriptions and summaries of material modifications as defined under ERISA), and descriptions; (v) written communications regarding any Company Plan to employees generally since the three most recent annual reports beginning of the Company’s preceding fiscal year; and (e.g., vi) written descriptions of all material non-written agreements relating to the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports)Company Plans.
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has The Company Plans (other than a Multiemployer Plan) have been maintained in all material respects in compliance accordance with its their terms and with all applicable provisions of ERISA, the requirements prescribed by any Code and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are other applicable to such Employee PlanLaws.
(d) To Each Company Plan (other than a Multiemployer Plan) that is intended to meet the knowledge requirements for tax-favored treatment under Subchapter B of Chapter 1 of Subtitle A of the Corporation and the Sellers, there are no pending or, Code meets such requirements. Nothing has occurred with respect to the knowledge operation of the Corporation Company Plans that could cause the imposition of any liability, penalty or tax under ERISA or the SellersCode, threatened claims, suits excluding any benefits properly payable under or other proceedings by any employees, former employees income or plan participants employment taxes properly withheld or the beneficiaries, spouses properly accrued or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating paid with respect to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Company Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by Neither the Corporation or by a Company nor any of its Affiliates nor any trade or business, business (whether or not incorporated, which ) that is deemed to be or has ever been under common control control, or affiliated that is or has ever been treated as a single employer, with the Corporation within the meaning any of them under Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code has any outstanding liability (an "ERISA Affiliate"whether or not assessed) for any tax, penalty or other liability with respect to any Employee Multiemployer Plan and, to the knowledge by reason of the Corporation any complete or the Sellers, such Plans do not expect to incur any such liability partial withdrawal therefrom prior to the date of Closing. The CorporationClosing Date, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable lawtermination, insolvency or reorganization thereof.
(f) To the knowledge All contributions (including all employer contributions and employee contributions) required to have been made under any of the Corporation and Sellers, Company Plans (including workers compensation) or by Law to any funds or trusts established thereunder or in connection therewith have been made by the Corporation or the Sellers have not engaged due date thereof (including any valid extension). No accumulated funding deficiencies exist in any transaction or acted or failed to act in a manner that violates of the fiduciary requirements of Section 404 Title IV Plans. There is no outstanding liability under Title IV of ERISA with respect to any Employee Plans, and will not so engage, act Title IV Plan or fail to act prior Multiemployer Plan other than premiums to the date Pension Benefit Guaranty Corporation (“PBGC”) that are not yet due.
(g) Except as set forth on Schedule 3.15(g), there is no “amount of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," unfunded benefit liabilities” (as defined in Section 3(144001(a)(18) of ERISA, or "disqualified person," as defined ) in Section 4975(e)(2) any of the Code, has engaged Title IV Plans in accordance with the actuarial assumptions used by the PBGC to determine the level of funding required in the event of the termination of any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary)plan.
(h) The Welfare Plans There are no pending material actions, claims or lawsuits arising from or relating to the Company Plans, (other than routine benefit claims), nor does the Company have any Knowledge of facts that are group health plans could form the basis for any such material claim or lawsuit.
(i) Except as defined for the purposes of Section 4980B set forth on Schedule 3.15(i), none of the Code and Company Plans provides for post-employment life insurance or health benefits coverage, except as may be required under Part 6 of Subtitle B of Title I of ERISAERISA at the expense of the participant or the participant’s beneficiary, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply or coverage through the last day of the month following the date of Closing, with requirements termination of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Planemployment.
(j) The Corporation has made all required contributions Except as set forth on Schedule 3.15(j), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment becoming due to any employee under each Pension any Company Plan, (ii) increase any benefits otherwise payable under any Company Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for or (iii) result in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 acceleration of the Codetime of payment or vesting of any such benefits under any Company Plan. Except as set forth on Schedule 3.15(j), none of the compensation payable under any Company Plan will constitute an “excess parachute payment” under Section 280G of the Code by reason of the consummation of the transactions contemplated by this Agreement, either solely as a result thereof or as a result of the transactions contemplated by this Agreement in conjunction with any other events.
(k) At any time prior to None of the date of this Agreement and from such date to the date of ClosingCompany, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not beenSubsidiaries or, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee Knowledge of the Corporation. Such contractsCompany, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions any of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement Underlying Projects has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangements.
(n) There has been no amendment to, written interpretation or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangements.
(o) There is no a contract, agreement, plan or arrangement covering commitment, whether legally binding or not, to create any employee additional Company Plan or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of materially modify any amount that would not be deductible pursuant to the terms of Section 280G of the Codeexisting Company Plan.
Appears in 1 contract
Samples: Stock Subscription Agreement (Central Vermont Public Service Corp)
Employee Benefits Plans. (a) Attached hereto as Section 5.15(a) of the Seller Disclosure Schedule 4.23(a)(1identifies each material Employee Benefit Plan that is sponsored and maintained by a Seller or any of its Subsidiaries for the benefit of the Business Employees (the “Business Employee Benefit Plans”). None of the Sellers has any plan or commitment, whether legally binding or not, to establish any new Business Employee Benefit Plans or Employment Agreement for the benefit of the Business Employees (the “Business Employee Employment Agreements”), is a list identifying to materially modify any Business Employee Benefit Plan or Business Employee Employment Agreement (except to the extent required by law or to conform any such Business Employee Benefit Plan or Business Employee Employment Agreement to the requirements of any applicable law, in each "employee pension benefit plan," case as defined previously disclosed to Buyer in Section 3(2) of ERISA (the "Pension Plans") and writing, or as Schedule 4.23(a)(2required by this Agreement), a list identifying each "employee welfare benefit plan," as defined in Section 3(1) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, adopt or which cover enter into any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Business Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Benefit Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Business Employee Employment Agreement) is maintained. Each Seller has provided or made available to Buyer, administered or contributed to by any entity other than the Corporationextent applicable, complete and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true and complete correct copies of (i) the Employee Plans plan documents (and related trust including any trusts or other agreements and other funding arrangements, if any, and adoption agreements, if anythat implement such plan), (ii) any amendments the most recent summary plan description together with the summary(ies) of material modifications thereto, if any, required under ERISA with respect to the each Business Employee PlansBenefit Plan subject to ERISA, (iii) written interpretations of the Employee Plans to most recent opinion, advisory or determination letter received from the plan administrator of such Plan IRS, (iv) material employee communications by the plan administrator of any most recent annual report (Form 5500, with all applicable attachments), (v) all related trust agreements, insurance contracts, and other funding arrangements that implement each Business Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA)Benefit Plan, and (vvi) all material communications to any Employee or Employees relating to any Business Employee Benefit Plan or Business Employee Employment Agreement.
(b) To the three most recent annual reports (e.g.Knowledge of the Sellers, each Business Employee Benefit Plan and each funding vehicle related to such Employee Benefit Plan is currently in compliance in all material respects with, and has been, funded, administered, and operated in material compliance with, its terms, the complete Form 5500 seriesterms of any applicable collective bargaining agreement and all applicable Laws. To the Knowledge of the Sellers, each Business Employee Benefit Plan that is intended to be a “qualified plan” as described in Section 401(a) prepared in connection with each Employee Plan (if any of the Code has been determined by the IRS to so qualify and such report was required)plan has received an opinion, including all attachments (including without limitation the actuarial valuation reports)advisory or determination letter stating that such plan is qualified, and there are no facts that would adversely affect such qualification.
(c) To the knowledge No Seller nor any of the Corporation and the Sellerstheir ERISA Affiliates has ever, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutesmaintained, ordersestablished, rules and regulationssponsored, including but not limited participated in, or contributed to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits had or other proceedings by could have any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating obligation to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISA, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellers, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, death, disability, or medical benefits (whether or not insured), with respect to current or former employees of the Corporation beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of Plan which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and subject to Part 6 3 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRA")) have complied at all times, and will continue to comply through the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare Plans, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 Title IV of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in or been liable to contribute to any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through the date of Closing, liable to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(m) Schedule 4.23(m) contains a list identifying each employment, severance or similar contract, arrangement or policy (exclusive of any such contract which is terminable within thirty (30) days without liability to the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into multiple employer plan or maintainedto any plan described in Section 413 of the Code, as the case may be, by the Sellers or the Corporation, and (iii) covers Multiemployer Plan. Neither Seller nor its ERISA Affiliates maintains, sponsors, contributes to, or has any liability or potential liability with respect to any employee benefit plan, program, or former employee arrangement that provides for post-retirement medical, life insurance, or other welfare-type benefits (other than health continuation coverage required by COBRA) and neither of the Corporation. Such contractsSellers nor any of their ERISA Affiliates have ever represented, plans and arrangements are hereinafter referred promised or contracted (whether in oral or written form) to collectively any Business Employee (either individually or to Business Employees as the "Benefit Arrangements". True and complete copies a group) that such Business Employee(s) would be provided with post-retirement medical, life insurance or descriptions other welfare-type benefits (other than health continuation coverage required by COBRA) upon their retirement or termination of the Benefit Arrangements have been or will be delivered to Buyeremployment. Each Benefit Arrangement Seller does not now, nor has been maintained in substantial compliance with it ever had the requirements prescribed by obligation to maintain, establish, sponsor, participate in, or contribute to any and all statutes, orders, rules and regulations which are applicable to such Benefit ArrangementsInternational Employee Plan.
(nd) There has been no amendment toThe execution of this Agreement, written interpretation the sale of the Acquired Assets, and the consummation of the Transactions will not (either alone or announcement upon the occurrence of any additional or subsequent events) constitute an event under any Business Employee Benefit Plan, Business Employee Employment Agreement, trust, or loan that will or may result in any payment (whether of severance pay or not written) by the Corporation relating tootherwise), acceleration, forgiveness of indebtedness, distribution, increase in benefits, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year obligation to fund benefits with respect to Employee Plans or the most recent fiscal year with respect to Benefit Arrangementsany Employee.
(o) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Corporation that, individually or in aggregate, could give rise to the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.
Appears in 1 contract
Employee Benefits Plans. (a) Attached hereto as Schedule 4.23(a)(1), is a list identifying each 5.11(a) lists "employee pension benefit plan," plans", as defined in Section 3(2) of ERISA (the "Pension Plans") and as Schedule 4.23(a)(2), a list identifying each "employee welfare benefit plan," as defined in Section 3(13(3) of ERISA, (the "Welfare Plans") that, in either case, are maintained, administered or contributed to by the Corporation, or which cover any employee or former employee of the Corporation. Collectively, the Pension Plans and the Welfare Plans shall hereafter be referred to as the "Employee Plans." Except as otherwise identified on Schedule 4.23(a)(1) and Schedule 4.23(a)(2) and on Schedule 4.23(m), (i) no Employee Plan or Benefit Arrangement (as defined in Section 4.23(m) of this Agreement) is maintained, administered or contributed to by any entity other than the Corporation, and (ii) no Employee Plan is maintained under any trust arrangement which covers any employee benefit arrangement which is not an Employee Plan.
(b) Sellers have delivered or will deliver to Buyer true and complete copies of (i) the Employee Plans (and related trust agreements and other funding arrangements, if any, and adoption agreements, if any), (ii) any amendments to the Employee Plans, (iii) written interpretations of the Employee Plans to the plan administrator of such Plan (iv) material employee communications by the plan administrator of any Employee Plan (including, but not limited to, summary plan descriptions and summaries of material modifications as defined under ERISA), and (v) the three most recent annual reports (e.g., the complete Form 5500 series) prepared in connection with each Employee Plan (if any such report was required), including all attachments (including without limitation the actuarial valuation reports).
(c) To the knowledge of the Corporation and the Sellers, each Employee Plan has been maintained in all material respects in compliance with its terms and the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, which are applicable to such Employee Plan.
(d) To the knowledge of the Corporation and the Sellers, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened claims, suits or other proceedings by any employees, former employees or plan participants or the beneficiaries, spouses or representatives of any of them, against any Employee Plan, the assets held thereunder, the trustee of any such assets, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements, other than ordinary and usual claims for benefits by participants or beneficiaries. Furthermore, there are no pending or, to the knowledge of the Corporation or the Sellers, threatened suits, investigations or other proceedings by any federal, state, local or other governmental agency or authority of or against any Employee Plan, the trustee of any assets held thereunder, or the Corporation relating to any of the Employee Plans, any other employee benefit plans, contracts or arrangements. If any of the actions described in this subsection are initiated prior to the Closing Date, the Sellers shall notify the Buyers of such action prior to the date of Closing.
(e) No liability has been incurred by the Corporation or by a trade or business, whether or not incorporated, which is deemed to be under common control or affiliated with the Corporation within the meaning of Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") for any tax, penalty or other liability with respect to any Employee Plan and, to the knowledge of the Corporation or the Sellers, such Plans do not expect to incur any such liability prior to the date of Closing. The Corporation, for all periods ending on the prior to the date of this Agreement, have administered, and between the date of this Agreement and the date of Closing, will administer each Employee Plan in compliance with the reporting, disclosure, fiduciary and all other requirements applicable thereto under ERISAmaterial employee benefit arrangements or payroll practices, the Code or any other applicable law.
(f) To the knowledge of the Corporation and Sellersincluding, the Corporation or the Sellers have not engaged in any transaction or acted or failed to act in a manner that violates the fiduciary requirements of Section 404 of ERISA with respect to any Employee Plans, and will not so engage, act or fail to act prior to the date of Closing. To the knowledge of the Corporation and the Sellers, the Corporation or the Sellers have not engaged in any "prohibited transaction" within the meaning of Section 406(a) or 406(b) of ERISA, or of Section 4975(c) of the Code with respect to any Employee Plan. Furthermore, to the knowledge of the Corporation or the Sellers, no other "party in interest," as defined in Section 3(14) of ERISA, or "disqualified person," as defined in Section 4975(e)(2) of the Code, has engaged in any such "prohibited transaction."
(g) No Employee Plan provides benefits, including without limitation, deathbonus plans, consulting or other compensation agreements, incentive, equity or equity-based compensation, or deferred compensation arrangements, stock purchase, severance pay and practices, sick leave, vacation pay, salary continuation, disability, hospitalization, medical insurance, life insurance and scholarship programs maintained by Sellers and the Subsidiaries or medical benefits (whether to which Sellers and the Subsidiaries contributed or not insured), with respect are obligated to contribute thereunder for current or former employees of Sellers and the Corporation beyond their retirement or other termination of service other than Subsidiaries (i) coverage mandated by applicable law, (ii) death, disability or retirement benefits under any Pension Plan, (iii) deferred compensation benefits accrued as liabilities on the financial statements of the Corporation, or (iv) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary).
(h) The Welfare Plans that are group health plans (as defined for the purposes of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, and all regulations thereunder, ("COBRAEmployee Benefit Plans")) have complied at all times, and will continue to comply through . Neither the date of Closing, with requirements of COBRA to provide health care continuation coverage to qualified beneficiaries who have elected, Seller or may elect to have, such coverage. The Corporation, or its agents who administer any of the Welfare PlansSubsidiaries has, have complied at all times and will continue to comply through the date of Closing, with the notification and written notice requirements of COBRA. There are no pending, and to the knowledge of the Corporation or the Sellers, threatened claims, suits, or other proceedings by any employee, former employee, participants or by the beneficiary, dependent or representative of any such person, involving the failure of any Welfare Plan or of any other group health plan ever maintained by the Corporation to comply with the health care continuation coverage requirements of COBRA.
(i) To the knowledge of the Corporation and the Sellers, each Pension Plan is "qualified" within the meaning of Section 401(a) of the Code, and has been qualified during the period from the date of its adoption to the date of this Agreement, and each trust created thereunder is tax-exempt under Section 501(a) of the Code. The Sellers have delivered or will deliver to the Buyers the latest determination letters of the Internal Revenue Service relating to each Pension Plan. Such determination letters have not been revoked. Furthermore, there are no pending proceedings or, to the knowledge of the Corporation or the Sellers, threatened proceedings in which the "qualified status of any Pension Plan is at issue and in which revocation of the determination letter has been threatened. Each such Pension Plan has not been amended or operated, since the receipt of the most recent determination letter, in a manner that would adversely affect the "qualified" status of the Plan. To the knowledge of the Corporation or Sellers, there has been no partial termination as defined in Section 411(d) of the Code and the regulations thereunder, of any Pension Plan.
(j) The Corporation has made all required contributions under each Pension Plan on a timely basis or, if not yet due, adequate accruals therefore have been provided for in the financial statements. No Pension Plan is subject to Section 302 of ERISA or the minimum funding standards imposed by Section 412 of the Code.
(k) At any time prior to the date of this Agreement and from such date to the date of Closing, neither the Corporation nor any of its ERISA Affiliates have at any time participated in within the last six years, maintained, contributed to, or been liable had any obligation to contribute to to, or has any liability (fixed or contingent) with respect to, any plan subject to Title IV of ERISA.
(l) The Corporation and its ERISA Affiliates have not been, nor will they become through or to the date funding requirements of Closing, liable to contribute to Section 412 of the Code including any plan which constituted a "multiemployer plan" (as defined in Section 3(374001(a)(3) of ERISAERISA or any plan subject to Sections 4063 or 4064 of ERISA ("multiple employer plan").
(mb) True, correct and complete copies of the following documents, with respect to each of the Employee Benefit Plans (as applicable), have been made available to Purchaser: (A) any plans and related trust documents, and all amendments thereto, (B) the most recent Forms 5500 for the past three (3) years and schedules thereto, (C) the most recent financial statements and actuarial valuations for the past three (3) years, (D) the most recent IRS determination letter, (E) the most recent summary plan descriptions (including letters or other documents updating such descriptions) and (F) written descriptions of all non-written agreements relating to the Employee Benefit Plans.
(c) Each of the Employee Benefit Plans intended to qualify under Section 401 of the Code ("Qualified Plans") has been determined by the IRS to be so qualified, and, except as disclosed on Schedule 4.23(m) contains a list identifying each employment5.11(c), severance or similar contractto the Knowledge of Sellers, arrangement or policy (exclusive nothing has occurred with respect to the operation of any such contract plan which is terminable within thirty (30) days without liability could reasonably be expected to result in the Sellers and the Corporation), and each plan or arrangement providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental employment benefits, vacation benefits, retirement benefits, deferred compensation, bonuses, profit-sharing, stock options, stock appreciation rights, or other forms revocation of incentive compensation or post-retirement compensation or benefit which (i) is not an Employee Plan, (ii) has been entered into or maintained, as the case may be, by the Sellers or the Corporation, and (iii) covers any employee or former employee of the Corporation. Such contracts, plans and arrangements are hereinafter referred to collectively as the "Benefit Arrangements". True and complete copies or descriptions of the Benefit Arrangements have been or will be delivered to Buyer. Each Benefit Arrangement has been maintained in substantial compliance with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangementsfavorable determination.
(nd) There has been no amendment to, written interpretation All contributions and premiums required by law or announcement (whether or not written) by the Corporation relating to, or change in employee participation or coverage under, terms of any Employee Benefit Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of expense incurred in respect of such Employee Plan or Benefit Arrangement for the most recent plan year any agreement relating thereto have been timely made (taking into account any waivers granted with respect thereto) to Employee Plans any funds or the most recent fiscal year with respect to Benefit Arrangementstrusts established thereunder or in connection therewith in all material respects.
(od) There is no contract, agreement, plan or arrangement covering any employee or former employee None of the Corporation that, individually or in aggregate, could give rise to Employee Benefit Plans which are "welfare benefit plans" within the payment by the Corporation, directly or indirectly, of any amount that would not be deductible pursuant to the terms meaning of Section 280G 3(1) of ERISA provide for continuing benefits or coverage for any participant or any beneficiary of a participant post-termination of employment except as may be required under the CodeConsolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA").
Appears in 1 contract
