Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. The Company is not a party to, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material labor dispute or any union organizing activity, or any threat thereof, in each case, involving any of the Company’s employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute. (b) Since January 1, 2019, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 2019, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effect. (c) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance or other funding documents, and all amendments thereto; (ii) the most recent determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan. (d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. (e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan. (f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate. (g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications. (h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code. (i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder. (j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any). (k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code. (l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 3 contracts
Samples: Merger Agreement (Antares Pharma, Inc.), Merger Agreement (Halozyme Therapeutics, Inc.), Merger Agreement (Antares Pharma, Inc.)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. .
(b) The Company is not a party to, nor is currently negotiating in connection with entering into, to any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Companyemployees. Since January 1, 20192016, there has not been any strike, slowdown, work stoppage, lockout, material labor dispute or any other union organizing activity, or any threat thereof, in each case, involving by any employees of the Company’s employees. There is not now pending, and, Company with respect to the knowledge of their employment with the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 20192016, the Company has complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effect.
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of each the material Employee PlanPlans (other than any employment, termination or severance agreement for non-officer employees of the Company, equity grant notices, and related documentation, with respect to employees of the Company and agreements with consultants entered into in the ordinary course of business consistent with past practice). The To the extent applicable, the Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevantof: (i) all plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments theretoin the case of unwritten Employee Plans, written descriptions thereof; (ii) the most recent all determination letter letters or opinion letter received from letters issued by the IRSIRS or the United States Department of Labor (“DOL”); (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reportsvaluation, if any, and the most recent annual report (B) the IRS Form Series 5500 and all schedules thereto and (C) audited financial statementsstatements attached thereto); (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the CodeCode (including 401(k) and 401(m) tests) for each Employee Plan; and (vi) all material correspondence to or from the IRS, the DOL or any material non-routine communications with any other Governmental Body regarding any with respect to an Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Company under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the CodeCode and, to the knowledge of the Company, no event has occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plan is now and Plans has been operated, maintained, and administered operated in material compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the codeCode and Section 406 of ERISA) has occurred or is reasonably expected to occur with respect to any Employee Plan. There are no pending, or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not resulted in, or would not reasonably be expected to result in, individually or in the aggregate, material liability to the Company and its Subsidiaries. No audit or investigation by any Governmental Body is pending or, to the knowledge of the Company, has been threatened or proposed with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1Except as provided in Section 2.8, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to entitle any current or former employee, director, officer, independent contractor or director other service provider of the Company to severance pay or any other payment; (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such person; or (iii) directly or indirectly cause the Company to fund any benefits under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(kh) The consummation Each Employee Plan that is subject to Section 409A of the Transactions Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder, except for any instances of noncompliance that do not have and would not reasonably be expected to have a Material Adverse Effect. The Company does not have an obligation to gross-up, indemnify or otherwise reimburse any current or former service provider to the Company for any Tax incurred by such service provider pursuant to Section 409A or Section 4999 of the Code. No Employee Plan or other agreement or Contract between the Company (including or any of its Subsidiaries) and an employee or other individual has resulted in combination with other events or circumstances) will not could reasonably be expected to result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G 280G(b)(1) of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, The Company has delivered or made available to the knowledge Parent or Parent’s Representatives copies of the Company, threatened against any Company Equity Plans and the forms of award agreements under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code) and is otherwise not subject to Section 409A of the Code.
(j) Each Employee Plan, Plan maintained for the assets benefit of any of employee or service provider (or former employee or service provider) who performs services outside the trusts under such plans or the plan sponsor or administratorUnited States is now and has been operated in compliance with its terms and all applicable Legal Requirements, except as has not resulted in, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could would not reasonably be expected to give rise result in, individually or in the aggregate, material liability to any such Legal Proceedingthe Company and its Subsidiaries. No Employee Plan described in this Section 3.16(j) is a defined benefit pension plan that is material.
Appears in 2 contracts
Samples: Merger Agreement (Juno Therapeutics, Inc.), Merger Agreement (Celgene Corp /De/)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Corporations’ employees is terminable by the Company applicable Acquired Corporation at will. The Company .
(b) No Acquired Corporation is not a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Companyan Acquired Corporation. Since January 1, 20192015, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting an Acquired Corporation or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(b) . Since January 1, 2019, 2015 there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any current or former Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 2019, 2015 the Company has complied Acquired Corporations have been in compliance in all material respects with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours and other terms and conditions of wages employment (including the classification and hours compensation of workemployees for purposes of the Fair Labor Standards Act and cognate state laws) and other Legal Requirements in respect of any reduction in force, leaves of absenceincluding notice, plant closing notificationinformation and consultation requirements, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any the lack of compliance with which has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(c) Section 3.16(cPart 2.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of each the material Employee PlanPlans (other than any employment, termination or severance agreement for non-officer employees of any Acquired Corporation and equity grant notices, and related documentation, with respect to employees of the Acquired Corporations and agreements with consultants entered into in the ordinary course of business all forms of which have been provided to Parent). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement Agreement, with respect to each material Employee Plan, accurate and complete copies of the following, as relevantof: (i) all material plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments theretoin the case of unwritten material Employee Plans, written descriptions thereof; (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the most recent determination letter IRS or opinion letter received from the IRSUnited States Department of Labor (“DOL”); (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reportsvaluation, if any, and the most recent annual report (B) the IRS Form Series 5500 and all schedules thereto and (C) audited financial statementsstatements attached thereto); (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the CodeCode (including 401(k) and 401(m) tests) for each Employee Plan; and (vi) all material correspondence to or from the IRS, the DOL, or any material non-routine communications with any other Governmental Body regarding any Employee Plansince January 1, 2015 through the date of this Agreement.
(d) Neither an Acquired Corporation nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company nor any of its under the Code or ERISA Affiliates has at any time sponsored, ever maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each , each such Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such Employee Plan. To the knowledge of the Company, each of the Employee Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of The Acquired Corporations are not nor reasonably could be subject to either a material liability pursuant to Section 406 502 of ERISA and or a Tax imposed pursuant to Section 4975 or 4976 of the code) has occurred Code. Other than routine claims for benefits, as of the date of this Agreement there are no material suits, claims, proceedings, actions, audits or is reasonably expected investigations pending, or, to occur the knowledge of the Company, threatened with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company any Acquired Corporation nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of an Acquired Corporation pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result entitle any current or former Company Associate to severance pay, unemployment compensation or any other cash payment, in any each case, in excess of $300,000 (ii) accelerate the time of payment or benefit becoming vesting, or increase the amount of, compensation or benefits due to any such Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee PlanAssociate, (iii) result in directly or indirectly cause the acceleration of the time of payment, funding Acquired Corporations to transfer or vesting of set aside any material assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) otherwise give rise to any material liability under any Employee Plan or (v) limit or restrict the right to modifyamend, amend terminate or terminate transfer any material assets of any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any)on or following the Effective Time.
(kh) The consummation Each Employee Plan or other Contract that is subject to Section 409A of the Transactions (including Code has been administered in combination compliance with other events or circumstances) will its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder, except for any instances of noncompliance that would not reasonably be expected to result in a material liability to the Acquired Corporations. The Acquired Corporations do not have an obligation to gross-up, indemnify or otherwise reimburse any current or former service provider to an Acquired Corporation for any tax incurred by such service provider pursuant to Section 409A of the Code.
(i) There is no agreement, plan, arrangement or other Contract covering any employee or independent contractor or former employee or independent contractor of an Acquired Corporation that, considered individually or considered collectively with any other such Contracts, will give rise to the payment of any material amount in connection with the Merger that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of would not be deductible pursuant to Section 280G of the Code. The Acquired Corporations are not a party to any Contract that would require, result in nor do the payment of an Acquired Corporations have any obligation (current or contingent), to compensate any individual for excise tax by any Person under taxes paid pursuant to Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 2 contracts
Samples: Merger Agreement (Zeltiq Aesthetics Inc), Agreement and Plan of Merger (Zeltiq Aesthetics Inc)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal RequirementsLaws, the employment of each of any of the Company’s Acquired Companies’ employees is terminable by the such Acquired Company at will. .
(b) The Company has made available to Purchaser a complete and accurate list of each current employee of the Acquired Companies as of the Agreement Date, including their (i) job titles, (ii) employing entity and location of employment (including city, state, province and country, as applicable), (iii) exempt or nonexempt status under federal and state law, (iv) base salaries or hourly wages, as applicable, (v) target bonuses, if applicable, (vi) target commissions and any other compensation arrangements, if applicable, and (vii) visa status and visa expiration date (if applicable).
(c) As of the Agreement Date, no Acquired Company is not a party to, nor has a duty to bargain for, or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge Knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Companies. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material picketing or labor dispute or any union organizing activitydispute, or any threat thereof, in each case, involving affecting any of the Company’s Acquired Companies or any of its employees. There As of the Agreement Date, there is not now pending, and, to the knowledge Knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material picketing or labor dispute or union organizing activity or any similar activity or dispute.
(bd) Since January 1, 2019As of the Agreement Date, there has been is no material Legal Proceeding pending or, to the knowledge Knowledge of the Company, threatened in writing relating to the employment, including any relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, other than any Legal Proceedings that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Since January 1, 2019, the each Acquired Company has complied with all applicable Legal Requirements Laws related to employment, including applicable Laws relating to employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safetydiscrimination, retaliation, harassment, immigration, wages, hours and discrimination mattersother terms and conditions of employment, any reduction in force (including notice, information and consultation requirements), except any lack of compliance which where the failure to be in compliance, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(ce) Section 3.16(c4.18(e) of the Company Disclosure Schedule sets forth Schedule, contains a complete and accurate list of each all material Employee Plans as of the Agreement Date. No Acquired Company has any agreement, commitment or obligation, to create, enter into or contribute to any additional material Employee Plan, or to modify, amend, maintain or continue any existing Employee Plan (except for amendments required by applicable Law with respect to which the amendment deadline has not yet lapsed). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance or Contracts and other funding documents, and all amendments thereto; (ii) the most recent determination letter any currently effective determination, opinion or opinion advisory letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statements5500; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required all material Contracts related to be performed under the Codesuch Employee Plan, including all service provider agreements, (vi) all material and nonroutine correspondence since January 1, 2018 to or from any Governmental Body relating to such Employee Plan; and (vivii) all coverage, nondiscrimination, top heavy and Code Section 415 tests performed with respect to such Employee Plan for the three most recently completed plan years. Solely for purposes of this Section 4.18(e) and Section 4.18(e) of the Company Disclosure Schedule, the definition of “Employee Plan” shall exclude any employment agreements and offer letters for non-officer employees of any of the Acquired Companies that do not differ in any material nonrespect from the form of such documents provided by the Company to Parent or Parent’s Representative and that can be terminated by the applicable Acquired Company at-routine communications will without notice, severance or other cost or liability and equity grant notices, and related documentation, in each case, that do not differ in any material respect from the form of such documents provided by the Company to Parent or Parent’s Representative, with respect to employees of any Governmental Body regarding any Employee Planof the Acquired Companies and agreements with consultants entered into in the ordinary course of business that can be terminated upon no more than 30 days’ advance notice without cost or liability.
(df) Neither the Company Acquired Companies nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Acquired Companies within the meaning of Section 414(b), (c), (m), or (o) of the Code or Section 4001(a)(14) or 4001(b)(1) of ERISA has during the past six (6) years maintained, contributed to, or been required to contribute to, or had has any liability in Liability under or with respect ofto, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) any plan that is or was subject to Section 302 or Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including (ii) any “multiemployer plan,” as defined in 3(37) or Section 4001 of ERISA. No Employee Plan is a , (iiii) a “any multiple employer plan” as defined in plan within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code, or (iiiv) a any “multiple employer welfare arrangement,” within the meaning of as defined in Section 3(40) of ERISA, “welfare benefit fund,” as defined in Section 419 of the Code, or voluntary employees’ beneficiary association under Section 501(c)(9) of the Code.
(eg) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the CodeCode and nothing has occurred that has adversely affected or could reasonably be expected to adversely affect the qualified status of any such Employee Plan or the tax-exempt status of any trust related thereto. Each of the Employee Plan is now and Plans has been operatedestablished, maintained, administered, operated and administered funded in compliance in all material respects with its terms and all applicable Legal RequirementsLaws, including but not limited to ERISA and the Code. No non-exempt “Except as would not reasonably be expected to result in a material liability to any Acquired Company, (i) no Acquired Company or any other Person (A) has breached any fiduciary duty imposed upon it by ERISA or any other Law with respect to any Employee Plan, or (B) engaged in a prohibited transaction” (transaction within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code (and not otherwise exempt under Section 408 of ERISA and Section 4975 4975(c)(2) or 4975(d) of the codeCode) with respect to any Employee Plan; and (ii) all contributions, premiums and other payments due or required to be paid to (or with respect to) any Employee Plan have been timely paid in accordance with the terms of such Employee Plan and applicable Law. No Acquired Company has occurred incurred (whether or is reasonably expected to occur not assessed), and there exists no condition or set of circumstances in connection with which any Acquired Company, Parent or any of their respective Subsidiaries or Affiliates could incur, directly or indirectly, any material penalty, Tax, fine, Encumbrance or Liability under ERISA, the Code or any other Law (including under Section 409, 502(i) or 502(l) of ERISA or Section 4975, 4980B, 4980D, 4980H, 5000, 6721 or 6722 of the Code) with respect to any Employee Plan.
(fh) Except No Acquired Company or Employee Plan provides, is obligated to the extent required under Section 601 et seq. of ERISA provide or 4980B of the Code has promised or agreed to provide (or any contribute toward the cost of) life insurance, medical or other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act Section 3(1) of 1938 and applicable state laws)ERISA) to any current or former director, and no such individual has been improperly included officer, employee, consultant, independent contractor or excluded from other service provider of or to any Employee PlanAcquired Company after his or her retirement or other termination of employment or service, except to the extent required by applicable Law.
(i) No claim (other than routine claims for misclassifications, non-compliance benefits) or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any Legal Proceeding is pending or, to the knowledge Knowledge of the Company, threatened inquiry with respect to (or audit from against the assets of) any Employee Plan, which, if decided adversely to such Employee Plan or any Acquired Company could reasonably be expected to have a Material Adverse Effect, nor, to the Knowledge of the Company, is there any reasonable basis for any such claim or Legal Proceeding. No Employee Plan is (or during the last six (6) years has been) the subject of any audit, examination, investigation or other Legal Proceeding by any Governmental Body concerning such classifications.
(h) The Company maintains no obligations or a participant in any amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Body, and to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 the Knowledge of the Code.
(i) Each “nonqualified deferred compensation plan” maintained Company, no such audit, examination or Legal Proceeding is contemplated or under consideration by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunderany Governmental Body.
(j) The consummation Each Employee Plan that provides nonqualified deferred compensation subject to Section 409A of the Transactions Code satisfies in form and operation all of the requirements of Sections 409A(a)(2), 409A(a)(3) and 409A(a)(4) of the Code and the guidance thereunder (including in combination with other events or circumstancesand has satisfied such requirements for the entire period during which Section 409A of the Code has applied to such Employee Plan).
(k) will Except as would not have a Material Adverse Effect, no Employee Plan exists that could (i) result in any payment or benefit becoming due to any current or former Company Associate Associate, including any severance or under any Employee Planother cash payment, and including as a result of Transactions, in each case, in excess of $100,000, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of paymentpayment or vesting, funding or vesting of the increase in the amount of, compensation or benefits due to any such Company Associate, (iii) directly or indirectly cause an Acquired Company to transfer or set aside any assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, or (iv) limit impair the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment rights of any amount that couldAcquired Company, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code Parent or any amount that would not be deductible of their respective Subsidiaries or Affiliates under Section 280G of the Code.
(l) With or with respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in including the ordinary course) are pendingright to amend, or, to the knowledge of the Company, threatened against terminate or merge any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 2 contracts
Samples: Merger Agreement (Pacira BioSciences, Inc.), Merger Agreement (Flexion Therapeutics Inc)
Employee Matters; Benefit Plans. (a) Subject Part 3.16(a) of the Company Disclosure Schedule sets forth a complete and accurate list of the current employees of the Acquired Entities as of the date hereof that shows with respect to each such employee, to the extent consistent with employee privacy rights, (i) the person to whom the employee reports, the position held and principal business unit, (ii) the employee’s date of hire, (iii) the employee’s primary work location, and (iv) the employee’s base salary. Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Entities’ employees is terminable by the Company applicable Acquired Entity at will. The Company .
(b) No Acquired Entity is not a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Companyan Acquired Entity. Since January 1, 20192014, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting an Acquired Entity or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(b) . Since January 1, 20192014, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 20192010, the Company has Acquired Entities have complied in all material respects with the Fair Labor Standards Act and all similar state Legal Requirements relating to the payment and calculation of wages owed to or accrued by employees and purported employees. Since January 1, 2014, the Acquired Entities have otherwise complied with all applicable Legal Requirements related to (i) employment, including employment practices, payment wages, hours and other terms and conditions of wages employment (including the classification and hours compensation of workemployees for purposes of the Fair Labor Standards Act and cognate state laws) and (ii) any reduction in force, leaves of absenceincluding notice, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, information and discrimination mattersconsultation requirements, except any lack of where the failure to be in compliance which with such Legal Requirements has not had and would not reasonably be expected to result in have a Company Material Adverse Effect.
(c) Section Part 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each the Employee PlanPlans as of the date of this Agreement (other than any employment, termination or severance agreement for non-officer employees of any Acquired Entity entered into in the Ordinary Course, and equity grant notices, and related documentation, issued in the Ordinary Course with respect to employees of the Acquired Entities, and agreements with consultants entered into in the Ordinary Course). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement Agreement, with respect to each material Employee Plan, accurate and complete copies of of, to the following, as extent relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) all current determination letters, rulings, opinion letters, information letters or advisory opinions issued by the most recent determination letter IRS or opinion letter received from the IRSUnited States Department of Labor (“DOL”); (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reportsvaluation, if any, and the most recent annual report (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statementsSeries 5500); (iv) the most recent summary plan descriptions and any material modifications thereto; and (v) the most recent nondiscrimination tests required to be performed under the Code; Code (including 401(k) and (vi401(m) any material non-routine communications with any Governmental Body regarding any tests) for each Employee Plan.
(d) Neither an Acquired Entity nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company nor any of its under the Code or ERISA Affiliates has at any time sponsored, ever maintained, contributed to, or been required to contribute to, or had incurred any liability in respect ofunder, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to materially and adversely affect the qualified status of any such Employee Plan. Each of the Employee Plan Plans is now and has been operatedestablished, maintained, operated and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. There are no pending or, to the knowledge of the Company, threatened claims (other than routine claims for benefits) or proceedings by a Governmental Body by, on behalf of or against any Employee Plan or any trust related thereto which could reasonably be expected to result in any material liability to an Acquired Entity. No non-exempt “prohibited transaction” (within the meaning of Acquired Entity has engaged in a transaction in connection with which an Acquired Entity could reasonably be expected to be subject to either a material civil penalty assessed pursuant to Section 406 409 or 502(i) of ERISA and or a material tax imposed pursuant to Section 4975 or 4976 of the code) has occurred or is reasonably expected to occur with respect to any Employee PlanCode.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company any Acquired Entity nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of an Acquired Entity pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1, 2019, all individuals who perform or have performed services for Neither the Company have been properly classified under applicable law as (i) employees or independent contractors execution and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within delivery of this Agreement nor the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not could (i) result entitle any current or former Company Associate to severance pay or any other cash payment (other than unemployment compensation in any the event of termination of employment); (ii) accelerate the time of payment or benefit becoming vesting, or increase the amount of, or directly or indirectly cause the Company to fund, compensation or benefits due to any such Company Associate Associate, other than, in either case, with respect to the Company Stock Awards in accordance with this Agreement, or (iii) otherwise give rise to any material liability under any Employee Plan.
(h) The Acquired Entities do not have an obligation to gross up, (ii) increase any amount of compensation indemnify or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to reimburse any current or former employeeservice provider to an Acquired Entity for any tax incurred by such service provider pursuant to Sections 409A, contractor 280G or director 4999 of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any)Code.
(ki) The consummation of Except as would not, in the Transactions (including in combination with other events or circumstances) will not aggregate, reasonably be expected to result in any material liability to the Acquired Entities, there is no agreement, plan, arrangement or other Contract covering any employee or independent contractor or former employee or independent contractor of an Acquired Entity that, considered individually or considered collectively with any other such Contracts, will give rise to the payment of any amount in connection with the Merger that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of would not be deductible pursuant to Section 280G of the Code, result in . For purposes of the payment preceding sentence (i) the impact of any payments or benefits that may be paid or payable to an employee (or other applicable service provider of an Acquired Entity) under any agreement or arrangement with Parent (or its Affiliates) that is not in effect, that has not been entered into or that has not otherwise been disclosed to the Company in writing, in each case, as of the date of this Agreement shall be disregarded and (ii) the employment or service of each such employee (or other applicable service provider of an Acquired Entity) shall be deemed to continue following the Closing Date or otherwise not be terminated in a manner that would cause any applicable severance payments or benefits to be deemed to be contingent upon the Merger. The Acquired Entities are not a party to any Contract that would require, nor do the Acquired Entities have any obligation (current or contingent), to compensate any individual for excise tax by any Person under taxes paid pursuant to Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(lj) With respect to any Employee Plan, No Company Stock Awards were granted in excess of the shares authorized by the stockholders of the Company for the Company Equity Plans.
(k) Each outstanding Company Stock Award (i) no Legal Proceeding (other than routine claims for benefits in was granted to a Person who was a Company Associate at the ordinary course) are pending, or, to the knowledge time of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereofgrant, and (ii) no facts or circumstances exist that could reasonably be expected was granted in compliance in all material respects with all of the terms and conditions of the Company Equity Plan pursuant to give rise which such outstanding Company Stock Award was issued. The execution and delivery of this Agreement by the Company and the consummation of the Merger will not constitute an event with respect to any such Legal Proceedingoutstanding Company Stock Award that will result in any payment of deferred compensation which will not be in compliance in all material respects with Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (J2 Global, Inc.), Merger Agreement (Everyday Health, Inc.)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the CompanyAcquired Corporation’s employees is terminable by the Company applicable Acquired Corporation at will. The .
(b) Each Contract of employment or for services providing for potential aggregate payments by the applicable Acquired Corporation reasonably expected to exceed $200,000 annually with any employee of any Acquired Corporation who provides services outside the United States (each a “Foreign Employee”) can be terminated by three months’ notice or less at any time without giving rise to any claim for damages, severance pay or compensation (other than as required by applicable Legal Requirements, including a statutory redundancy payment applicable by virtue of any Legal Requirement or compensation for unfair dismissal applicable by virtue of any Legal Requirement or any other remedy under any Legal Requirement).
(c) To the knowledge of the Company, no Company Associate that is not listed on Part 3.16(c) of the Disclosure Schedule has delivered the Company a written notice of such Company Associate’s intention to terminate his or her employment prior to the Closing Date for any reason.
(d) None of the Acquired Corporations is a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council works’ council, or similar employee representative body representing any of its employees and there are no labor organizations or works councils, or similar employee representative body representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Corporations. Since January 1December 31, 20192009, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting any of the Company’s employeesAcquired Corporations or any of current or former Company Associate. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019. To the knowledge of the Company, there has been are no unfair labor practice charges or complaints against any of the Acquired Corporations pending before the National, Labor Relations Board or any foreign equivalent. There is no material Legal Proceeding claim, complaint, charge or grievance pending and served to an Acquired Company or, to the knowledge of the Company, threatened pending or threatened, in writing relating each case under any Legal Requirements related to the employment or engagement termination of employment, including any Company Employee Agreement, wages and hours, bonus, commission and other compensation plans, employment withholding, record keeping, child labor, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any current or former Company Associate, including charges of unfair labor practices or harassment complaints. Since January April 1, 20192011, the Company has complied in all material respects with its own policies, plans, practices, work rules, and all applicable Legal Requirements related to employment, including termination of employment, employment practices, payment of wages wages, hours, meal and hours of workrest period, leaves of absencebonus, plant closing notificationcommission and other compensation plans, privacy rightsTax withholdings, discrimination and harassment, fair employment practices, equal employment opportunity, workers’ compensation, collective bargaining (including any applicable foreign national collective bargaining agreement), labor disputepractices immigration status, workplace safetycontractual obligations, retaliationoccupational safety and health and other terms and conditions of employment (including the classification and compensation of employees for purposes of the Fair Labor Standards Act of 1938, immigrationas amended (and the rules and regulations promulgated thereunder), and discrimination matterscognate state Legal Requirements) and other Legal Requirements in respect of any reduction in force, including notice, information and consultation requirements, except any where the lack of compliance which with does not constitute a Company Material Adverse Effect. In addition, each Acquired Corporation has complied in all material respects with its own policies, plans, practices, work rules and internal regulations, and all applicable Legal Requirements, related to such Acquired Corporation’s supply chains, human trafficking, and whistleblower protections, except where the lack of compliance with does not had constitute a Company Material Adverse Effect.
(e) With respect to current and former Company Associates: except with respect to instances or noncompliance that would not reasonably be expected to result in a Material Adverse Effectmaterial liability to the Acquired Corporations, the Acquired Corporations (i) have withheld and reported all amounts required by applicable Legal Requirements or by agreement to be withheld and reported with respect to wages, salaries and other payments, (ii) are not liable for any arrears of wages, fees, severance pay or any Taxes or any penalty for failure to comply with any of the foregoing, and (iii) are not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Government Body, with respect to unemployment compensation benefits, social security, social insurance or other benefits or obligations for current and former employees (other than routine payments to be made in the ordinary course of business consistent with past practices).
(cf) Section 3.16(cPart 3.16(f) of the Company Disclosure Schedule sets forth a true, correct and complete and accurate list of each the material Company Employee PlanPlans (other than any employment, termination or severance agreement for non-officer employees of any Acquired Company and equity grant notices, and related documentation, with respect to employees of any Acquired Corporation). The Company has either delivered or made available Made Available to Parent or Parent’s Representatives prior to the execution of this Agreement , with respect to each material Company Employee Plan, accurate true, correct and complete copies of the following, as relevantof: (i) all plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; in the case of unwritten material Company Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the United States Internal Revenue Service or the United States Department of Labor, (iii) the most recent determination letter or opinion letter received from annual actuarial valuation, if any, and the IRS; (iii) for the three most recent plan years, annual report (A) the annual actuarial or other valuation reports, (B) the IRS Form Series 5500 and all schedules thereto and (C) audited financial statements; statements attached thereto), (iv) the most recent summary plan descriptions and any material modifications thereto; , (v) the most recent nondiscrimination tests required to be performed under the Code; Code (including 401(k) and 401(m) tests) for each Company Employee Plan, (vi) insurance policies providing benefits under Company Employee Plans, and (vii) all material correspondence to or from the United States Internal Revenue Service, the United States Department of Labor, or any material non-routine communications with any other Governmental Body regarding any Employee Plansince April 1, 2011.
(dg) Neither None of the Company Acquired Corporations nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with an Acquired Corporation under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, Code ERISA or Section 412 or Section 302 of ERISAthe Code, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(eh) Each of the Company Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Company Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Company Employee Plan or result in material liability to the Acquired Corporations. Each of the Company Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable U.S. Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur Since August 1, 2008, with respect to each Company Associate the Acquired Corporations have complied in all material respects with the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (and the rules and regulations promulgated thereunder),the Health Insurance Portability and Accountability Act of 1996, as amended (and the rules and regulations promulgated thereunder), and the Family and Medical Leave Act of 1993, as amended (and the rules and regulations promulgated thereunder). None of the Acquired Corporations is or reasonably could be subject to either a liability pursuant to Section 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code. For the last six years, the Acquired Corporations have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the Company, there is no default or violation by any other party to, any Company Employee Plan.
(fi) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company Acquired Corporations nor any Company Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Acquired Corporations pursuant to any Company Associate.
(g) Since January 1, 2019, all individuals who perform retiree medical benefit plan or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation other retiree welfare plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Contemplated Transactions (including in combination with other events or circumstances) will shall not (i) result entitle any current or former Company Associate to severance pay, unemployment compensation or any other payment, in any each case, in excess of $100,000 per Company Associate, (ii) accelerate the time of payment or benefit becoming vesting, or increase the amount of, compensation or benefits due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee PlanAssociate, (iii) result in directly or indirectly cause the acceleration of the time of payment, funding Acquired Corporations to transfer or vesting of set aside any material assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Company Employee Plan, (iv) otherwise give rise to any material liability under any Company Employee Plan (v) limit or restrict the right to modifyamend, amend terminate or terminate transfer any material assets of any Company Employee Plan on or following the Effective Time or (except any limitations imposed by applicable Legal Requirements, if any).
(kvi) The consummation of the Transactions (including in combination with other events or circumstances) will not result in give rise to the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under pursuant to the terms of Section 280G of the Code.
(lk) With respect to any Employee PlanExcept as set forth in Part 3.16(k) of the Disclosure Schedule, (i) no Legal Proceeding material Foreign Plan is maintained (other than routine claims any employment, termination or severance agreement for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets non-officer employees of any of the trusts under such plans Acquired Corporation, government mandated benefits, including consultation rights or the plan sponsor or administratornotices, or against any fiduciary of any Employee Plan and equity grant notices, and related documentation, with respect to employees of any Acquired Corporation). Each Foreign Plan has been operated and maintained in all material respects in compliance with its terms and with applicable Legal Requirements (including any special provisions relating to qualified plans where such Foreign Plan was intended to so qualify) and has been maintained in good standing with the operation thereofapplicable regulatory authorities, including obtaining from the Governmental Body having jurisdiction over such Foreign Plan any required documentation that such Foreign Plan is in compliance with the Legal Requirements of the relevant jurisdiction if such determination is required to give effect to such Foreign Plan. According to the actuarial assumptions and valuations most recently used for the purpose of funding each Foreign Plan (iior, if the same has no such assumptions and valuations or is unfunded or is not subject to statutory funding requirements, according to the actuarial assumptions and valuations prescribed by applicable local accounting standards and principles), as of December 31, 2012, the total amount or value of the funds available under such Foreign Plan to pay benefits accrued thereunder or segregated in respect of such accrued benefits, together with any reserve or accrual with respect thereto, exceeded the present value of all benefits (actual or contingent) no facts accrued as of such date of all participants and past participants therein in respect of which the Acquired Corporations have or circumstances exist would have after the Effective Time any obligation.
(l) Each Company Employee Plan that could is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code, except for any instances of noncompliance that would not reasonably be expected to give rise result in a material liability to the Acquired Corporations.
(m) The Acquired Corporations do not have an obligation to gross-up, indemnify or otherwise reimburse any current or former service provider to the Acquired Corporations for any Tax incurred by such Legal Proceedingservice provider.
Appears in 2 contracts
Samples: Merger Agreement (Maxim Integrated Products Inc), Agreement and Plan of Merger (Volterra Semiconductor Corp)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal RequirementsLaws, the employment of each of the Company’s employees and the employees of the Company’s Subsidiaries is terminable by the Company or its Subsidiaries at will. The .
(b) As of the Agreement Date, neither the Company nor any of its Subsidiaries is not a party to, nor has any duty to bargain for, or is not currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge Knowledge of the Company, seeking to represent any employees of the CompanyCompany or its Subsidiaries. Since January 1, 20192020, there has not been any strike, slowdown, work stoppage, lockout, material picketing or labor dispute dispute, affecting the Company, any of its Subsidiaries or any union organizing activity, or any threat thereof, in each case, involving any of its employees. As of the Company’s employees. There Agreement Date, there is not now pending, and, to the knowledge Knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material picketing or labor dispute or union organizing activity or any similar activity or dispute.
(bc) Since January 1, 2019As of the Agreement Date, there has been is no material Legal Proceeding pending or, to the knowledge Knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 2019, the Company has complied with all applicable Legal Requirements related to employment, including employment practicesrelating to any Company Employee Agreement, payment of wages and hours of workhours, leaves leave of absence, plant closing notification, employment statute or regulation, privacy rightsright, labor dispute, workplace workers’ compensation policy or long-term disability policy, safety, retaliation, immigrationimmigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints, other than any Legal Proceedings that, individually or in the aggregate, have not had and discrimination matterswould not reasonably be expected to have a Material Adverse Effect. Since January 1, 2020, the Company and its Subsidiaries have complied with all applicable Laws related to employment, including applicable Laws relating to employment practices, wages, hours and other terms and conditions of employment, any reduction in force (including notice, information and consultation requirements), except any lack of compliance which where the failure to be in compliance, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(cd) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all material plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 5500; and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v. For purposes of this Section 4.17(d) and Section 4.17(d) of the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Company Disclosure Schedule, “Employee Plan” shall exclude any employment, termination or severance agreement for employees of the Company with an annual base salary less than $175,000 and equity grant notices, and related documentation, with respect to employees of the Company and agreements with consultants entered into in the ordinary course of business). No Employee Plan is subject to the Laws of a jurisdiction outside the United States.
(de) Neither the Company nor or any of its ERISA Affiliates has Subsidiaries nor any other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Company or any of its Subsidiaries within the meaning of Section 414(b), (c), (m), or (o) of the Code has, to the Knowledge of the Company, during the past six (6) years maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(ef) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each To the Knowledge of the Company, each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal RequirementsLaws, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law Except as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in have a Material Adverse Effect and the Company has not received notice of any pending orEffect, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not Employee Plan exists that could (i) result in any payment or benefit becoming due to any current or former Company Associate Associate, including any severance, unemployment compensation or under any Employee Planother cash payment, in each case, in excess of $300,000, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of paymentpayment or vesting, funding or vesting of any the increase in the amount of, compensation or benefits due to any current such Company Associate, or former employee, contractor (iii) directly or director of indirectly cause the Company or any of its Subsidiaries to transfer or set aside any material assets to fund any benefits under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(kh) The Neither the execution and delivery of this Agreement nor the consummation of the Transactions Transactions, either alone or in connection with any other event (including in combination with other events whether contingent or circumstancesotherwise) will not is reasonably expected to result in the any payment of any amount that couldor benefit, individually or in combination with any other payment or benefit, constitute constituting an “excess parachute payment,” within the meaning of as defined in Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G 280G(b)(1) of the Code.
(li) With respect None of the Employee Plans provides material health, medical or life insurance benefits to any Employee Planretired Person, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against or any Employee Plan, the assets current employee of any of the trusts under Company following such plans employee’s retirement or other termination of employment, except (i) as required by applicable Law (including Section 4980B of the plan sponsor Code) or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceedingfor subsidized COBRA premiums during severance.
Appears in 2 contracts
Samples: Merger Agreement (Supernus Pharmaceuticals, Inc.), Merger Agreement (Adamas Pharmaceuticals Inc)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Corporations’ employees is terminable by the Company applicable Acquired Corporation at will. The Company .
(b) No Acquired Corporation is not or has been a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement, works council agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Companyan Acquired Corporation. Since January 1, 2019, there There has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting any Acquired Corporation or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there . There has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, whistle blower, breach of public policy, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 2019, the Company has The Acquired Corporations have complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours, compensation, termination of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effect.
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance or employment and/or other funding documents, and all amendments thereto; (ii) the most recent determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning conditions of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of the classification and compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.of
Appears in 2 contracts
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the The employment of each of the Company’s United States employees is terminable by the Company at will. .
(b) The Company is not a party to, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees employees, and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the CompanyCompany or any of its Subsidiaries. Since January 1, 20192015, there has not been any strike, slowdown, work stoppage, lockout, material picketing or labor dispute dispute, affecting the Company, any of its Subsidiaries or any union organizing activity, or any threat thereof, in each case, involving any of the Company’s their respective employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material picketing or labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been . There is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 20192015, the Company has complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours, worker classification and other terms and conditions of wages employment and hours other Legal Requirements in respect of workany reduction in force, leaves of absenceincluding notice, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, information and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effectconsultation requirements.
(c) Section Part 3.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of the material Employee Plans (other than equity grant notices with respect to employees or service providers of the Acquired Companies and any mandatory governmental benefits for employees outside the United States) and separately identifies each material Employee Plan that is maintained primarily for the benefit of employees outside the United States (each, a “Foreign Employee Plan”). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statements5500; (iv) the most recent summary plan descriptions and any material modifications thereto; and (v) the most recent nondiscrimination tests required all material correspondence to be performed under the Code; and (vi) any material non-routine communications with or from any Governmental Body regarding any relating to such Employee Plan.
(d) Neither None of the Company nor Company, its Subsidiaries or any of its their respective ERISA Affiliates has at any time sponsoredhas, during the past six years maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Section 302 or Title IV of ERISA, Code ERISA or Section 412 or Section 302 4971 of ERISAthe Code, including any “multiemployer single employer” defined benefit plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each None of the Company, its Subsidiaries or any of their respective ERISA Affiliates or any of their respective predecessors has within the last six (6) years contributed to, contributes to, has ever been required to contribute to, or has any liability with respect to any Multiemployer Plan. None of the Company or any of its Subsidiaries contributes to a Foreign Employee Plan that has two or more contributing sponsors, at least two of whom are not under common control, except for Foreign Employee Plans with respect to which participation is required under applicable Legal Requirements.
(f) Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within All contributions or other amounts payable by the meaning Company or any of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur its Subsidiaries with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any each Employee Plan has any present in respect of current or future obligation to provide post-employment welfare benefits to prior plan years have been timely paid or make any payment to, or accrued in accordance with respect to any Company AssociateGAAP.
(g) Since January 1During the immediately preceding six years, 2019, all individuals who perform no liability under Section 302 or have performed services for the Company have been properly classified under applicable law as (i) employees Title IV of ERISA or independent contractors and (ii) for employees, as an “exempt” employee Section 412 or a “non-exempt” employee (within the meaning 4971 of the Fair Labor Standards Act of 1938 and applicable state laws)Code has been incurred by the Company, its Subsidiaries or their respective ERISA Affiliates or their respective predecessors that has not been satisfied in full, and no condition exists that presents a risk to the Company, its Subsidiaries or any such individual has been improperly included or excluded from ERISA Affiliates of incurring any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any such liability.
(h) There are no Legal Proceedings pending or, to the knowledge of the Company, threatened inquiry or audit from by any Governmental Body concerning such classificationsor by any employee or beneficiary covered under any Employee Plan that involve any Employee Plan (except routine claims for benefits payable under the Employee Plans).
(hi) The No Employee Plan provides health insurance, life insurance or death benefits to current or former employees of the Company maintains no obligations to gross-up or reimburse any individual for any tax of its Subsidiaries beyond their retirement or related interest or penalties incurred other termination of service, other than as required by such individual under Sections 409A or 4999 Section 4980B of the Code.
(ij) Each “nonqualified deferred compensation plan” maintained by All Foreign Employee Plans comply with applicable local Legal Requirements, and all such plans that are intended to be funded and/or book-reserved are funded and/or book-reserved, as appropriate, based on reasonable actuarial assumptions, except where such failure to comply or failure to be so funded and/or book reserved has not had and would not reasonably be expected to, individually or in the Company has been at all times aggregate, result in a material documentary and operational compliance liability to the Acquired Companies or otherwise interfere in any material respect with the requirements conduct of Code Section 409A and the guidance provided thereundertheir respective businesses as now being conducted.
(jk) The Neither the execution and delivery of this Agreement nor the consummation of the Transactions will (including either alone or in combination conjunction with any other events or circumstances) will not event): (i) result in entitle any payment current or benefit becoming due to any former Company Associate to severance pay, unemployment compensation or under any Employee Planother cash payment, (ii) accelerate the time of payment or vesting, or increase any the amount of of, compensation or benefits otherwise payable due to any such Company Associate or under any Employee PlanAssociate, (iii) result in directly or indirectly cause the acceleration of the time of payment, funding Acquired Companies to transfer or vesting of set aside any assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right otherwise give rise to modify, amend or terminate any liability under any Employee Plan Plan, (except any limitations imposed by applicable Legal Requirements, if any).
(kv) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” (within the meaning of Section 280G of the Code) becoming due to any current or former Company Associate, result in or (vi) limit or restrict the payment of an excise tax by any Person under Section 4999 right of the Code Company or any amount that would not be deductible under Section 280G of the Codeits Subsidiaries to merge, amend or terminate any Employee Plan.
(l) With respect to Neither the Company nor any Employee Planof its Subsidiaries is a party to, (i) no Legal Proceeding (other than routine claims or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for benefits in the ordinary course) are pending, or, to the knowledge gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Company, threatened against Code (or any Employee Plan, the assets corresponding provisions of any of the trusts under such plans state or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect local Law relating to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal ProceedingTax).
Appears in 2 contracts
Samples: Merger Agreement (Mallinckrodt PLC), Merger Agreement (Sucampo Pharmaceuticals, Inc.)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. .
(b) The Company is not a party to, nor is currently negotiating in connection with entering into, to any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Companyemployees. Since January 1, 20192016, there has not been any strike, slowdown, work stoppage, lockout, material labor dispute or any other union organizing activity, or any threat thereof, in each case, involving by any employees of the Company’s employees. There is not now pending, and, Company with respect to the knowledge of their employment with the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 20192016, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which as has not had and had, or would not reasonably be expected to result have, individually or in the aggregate, a Material Adverse Effect.
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of each the material Employee PlanPlans (other than any employment, termination or severance agreement for non-officer employees of the Company, equity grant notices, and related documentation, with respect to employees of the Company and agreements with consultants entered into in the ordinary course of business consistent with past practice). The To the extent applicable, the Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, Plan listed on Section 3.16(c) of the Company Disclosure Schedule accurate and complete copies of the following, as relevantof: (i) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; in the case of unwritten Employee Plans, written descriptions thereof, (ii) the most recent determination letter or opinion letter received from annual actuarial valuation, if any, and the IRS; (iii) for the three most recent plan years, annual report (A) the annual actuarial or other valuation reports, (B) the IRS Form Series 5500 and all schedules thereto and financial statements attached thereto) and (Ciii) audited financial statements; (iv) all material correspondence to or from the most recent summary plan descriptions and IRS, the United States Department of Labor or any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any other Governmental Body regarding any with respect to an Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Company under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plan Plans is now and since January 1, 2016 has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No non-exempt “prohibited transaction” (within To the meaning knowledge of the Company, the Company is not and could not reasonably be expected to be subject to a liability pursuant to Section 406 502 of ERISA and or a Tax imposed pursuant to Section 4975 or 4976 of the code) Code, except as has occurred not had, or is would not reasonably be expected to occur with respect have, individually or in the aggregate, a Material Adverse Effect. There are no pending, or, to the knowledge of the Company, threatened or anticipated claims by or on behalf of any Employee Plan, by any employee or beneficiary covered under any such plan, or otherwise involving any such plan (other than routine claims for benefits), except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at ), or where the participant’s sole expensefull cost of such benefit is borne entirely by the applicable individual (or his or her eligible dependents or beneficiaries), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1Except as provided in Section 2.8, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to entitle any current or former employee, director, officer, independent contractor or director other service provider of the Company to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any benefits under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(kh) The consummation Company has delivered or made available to Parent copies of the Transactions Company Equity Plan and the forms of all agreements and instruments relating to or issued under the Company Equity Plan. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G 409A of the Code, result in the payment of an excise tax by any Person under ) and is otherwise not subject to Section 4999 of the Code or any amount that would not be deductible under Section 280G 409A of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims Each Employee Plan maintained for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets benefit of any of employee or service provider (or former employee or service provider) who performs services outside the trusts under such plans or the plan sponsor or administratorUnited States is now and has been operated in compliance with its terms and all applicable Legal Requirements, except as has not had, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could would not reasonably be expected to give rise to any such Legal Proceedinghave, individually or in the aggregate, a Material Adverse Effect. No Employee Plan described in this Section 3.16(i) is a defined benefit pension plan that is material.
Appears in 2 contracts
Samples: Merger Agreement (Gilead Sciences Inc), Agreement and Plan of Merger (Kite Pharma, Inc.)
Employee Matters; Benefit Plans. (ai) Subject to Except as required by applicable Legal RequirementsLaws, the employment of each of the Company’s employees located in the United States is terminable by the Company at will. The .
(ii) None of the members of the Company Group is not a party to, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the CompanyCompany Group. Since January 1, 20192021, through the date of this Agreement, there has not been any strike, slowdown, work stoppage, lockout, material picketing or labor dispute or any union organizing activitydispute, or any threat thereof, in each case, involving thereof affecting the Company Group or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 20192021, and except for those matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company Group has complied with all applicable Laws related to employment and employment practices, including any pertaining to payment wages and hours of work, leaves of absence, plant closing notifications, employment statutes or regulations, workplace health and safety, retaliation, or discrimination matters, including charges of unfair labor practices or harassment complaints, and, as of the date of this Agreement, there has been is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 2019, the Company has complied with all such applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse EffectLaws.
(ciii) To the knowledge of the Company, in the last five years, (A) no allegations of sexual harassment, discrimination or sexual misconduct have been made against any member of the Company Board or any officer of the Company Group subject to the reporting requirements of Section 16(a) of the Exchange Act, (B) no member of the Company Group has entered into any settlement agreement related to allegations of sexual harassment, discrimination or sexual misconduct by any member of the Company Board or any officer of the Company Group subject to the reporting requirements of Section 16(a) of the Exchange Act and (C) there have been no, and there are no proceedings currently pending or, to the knowledge of the Company, threatened, related to any allegations of sexual harassment, discrimination or sexual misconduct by any member of the Company Board or any officer of the Company Group subject to the reporting requirements of Section 16(a) of the Exchange Act.
(iv) Section 3.16(c6.1(q)(iv) of the Company Disclosure Schedule sets forth a true and complete and accurate list of each the material Employee Plan. Agreements as of the date of this Agreement (A) the terms of which obligate the Company or any member of the Company Group to provide any severance or termination benefits to any employee, other than as may be required by applicable Laws; or (B) pursuant to which the Company or any member of the Company Group is obligated to provide any change-in-control, retention, or similar payment or benefits to any employee.
(v) Section 6.1(q)(v) of the Company Disclosure Schedule sets forth a true and complete list of the material Employee Plans.
(vi) The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the followingfollowing (other than equity grant notices, and related documentation, with respect to employees of the Company Group and agreements with consultants entered into in the ordinary course of business), as relevant: (iA) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (iiB) the most recent any currently effective determination letter or opinion letter received from the IRSUnited States Internal Revenue Service; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statementsthe most recent annual actuarial valuation and the most recent Form 5500; (ivD) the most recent summary plan descriptions and any material modifications thereto; (vE) the most recent nondiscrimination tests required to be performed under the Code; and (viF) copies of any material non-routine communications correspondence with any Governmental Body regarding any Employee PlanEntity in the past two years.
(dvii) Neither any member of the Company Group nor any of its ERISA Affiliates has other Person who would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Company under the Code or ERISA has during the past six years maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No .
(viii) Neither the Company nor any Subsidiary has any obligation to provide, and no Employee Plan is or other agreement provides any individual with the right to, a (i) a “multiple employer plan” as defined in gross up, indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 413(c) 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under of Section 280G of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(eix) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, each of the Employee Plan Plans and Employee Agreements is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal RequirementsLaws, including but not limited to ERISA and the Code. No non-exempt .
(x) Each Employee Plan and Employee Agreement that is a “prohibited transactionnonqualified deferred compensation plan” (within the meaning of Section 406 of ERISA and Section 4975 409A of the codeCode) is in documentary compliance with, and has occurred or is reasonably expected to occur with respect to any Employee Planbeen operated and administered in all material respects in compliance with, Section 409A of the Code and the guidance issued by the Internal Revenue Service provided thereunder.
(fxi) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expenseLaw), neither any member of the Company Group nor any Employee Plan or Employee Agreement has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of any member of the Company Group pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(hxii) The Company maintains no obligations to gross-up execution and delivery of this Agreement, shareholder or reimburse any individual for any tax other approval of this Agreement, or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not could not, (iA) result in any accelerate the time of payment or benefit becoming vesting, or materially increase the amount of, compensation or benefits due to any such Company Associate or Employee under any Employee Agreement or Employee Plan, (iiB) increase directly or indirectly cause any amount of compensation the members of the Company Group to transfer or set aside any material assets to fund any benefits otherwise payable to any Company Associate or under any Employee Agreement or Employee Plan, (iiiC) result in the acceleration of the time of payment, funding or vesting of any benefits otherwise give rise to any current or former employee, contractor or director of the Company or material liability under any Employee Plan, Agreement or Employee Plan or (ivD) limit or restrict the right to modifymerge, amend materially amend, terminate or terminate transfer the assets of any Employee Agreement or Employee Plan (except any limitations imposed by applicable Legal Requirements, if any)on or following the Effective Time.
(kxiii) The Neither the execution and delivery of this Agreement, shareholder or other approval of this Agreement nor the consummation of the Transactions (including in combination with other events or circumstances) will not could result in the payment of any amount that could, individually or in combination with any other payment or benefitsuch payment, constitute an “excess parachute payment” within the meaning of as defined in Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G 280G(b)(1) of the Code.
(lxiv) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge As of the Company, threatened against any Employee Plandate of this Agreement, the assets of any Company has made available to Parent a true and complete list, as of the trusts under Company Capitalization Date, of all of the Company Share Plans, all outstanding Company Equity Awards, including, the date of grant, the type of the award, the number of Company Shares subject to such plans or type of award (based on the plan sponsor or administratoraggregate number of shares granted on the grant date and vesting on the applicable vesting date), or against any fiduciary of any Employee Plan with respect to vesting schedule and, for the operation thereofCompany Options, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceedingthe applicable exercise price.
Appears in 2 contracts
Samples: Transaction Agreement (Amgen Inc), Transaction Agreement (Horizon Therapeutics Public LTD Co)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal RequirementsLaws, the employment of each of any of the Company’s Acquired Companies’ employees is terminable at-will by the Company at will. such Acquired Company.
(b) The Company has made available to Purchaser a complete and accurate list of each current employee of the Acquired Companies as of the Agreement Date, including for each current employee: (i) job title, (ii) employing entity and location of employment (including city, state, province and country, as applicable), (iii) exempt or nonexempt status under applicable federal and state wage and hour Laws, (iv) base salary or hourly wages, as applicable, (v) target bonuses, if applicable, (vi) target commissions and any other compensation arrangements, if applicable, and (vii) visa status and visa expiration date (if applicable).
(c) No Acquired Company is not a party to, nor has a duty to bargain for, or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge Knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Companies. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material picketing or labor dispute or any union organizing activitydispute, or any threat thereof, in each case, involving affecting any of the Company’s Acquired Companies or any of its employees. There is not now pending, and, to the knowledge Knowledge of the Company, since January 1, 2019, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material picketing or labor dispute or union organizing activity or any similar activity or dispute.
(bd) Since January 1, 2019, there has been There is no material Legal Proceeding pending or, to the knowledge Knowledge of the Company, since January 1, 2019, threatened in writing relating to the employment, including any relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, other than any Legal Proceedings that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Since January 1, 2019, the each Acquired Company has complied with all applicable Legal Requirements Laws related to employment, including applicable Laws relating to employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safetydiscrimination, retaliation, harassment, immigration, wages, hours and discrimination mattersother terms and conditions of employment, any reduction in force (including any notice and information requirements), except any lack of compliance which where the failure to be in compliance, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(ce) Section 3.16(c4.18(e) of the Company Disclosure Schedule sets forth Schedule, contains a complete and accurate list of each all Employee Plans as of the Agreement Date. No Acquired Company has any agreement, commitment or obligation, to create, enter into or contribute to any additional material Employee Plan, or to modify, amend, maintain or continue any existing Employee Plan (except for amendments required by applicable Law with respect to which the amendment deadline has not yet lapsed). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance or Contracts and other funding documents, and all amendments thereto; (ii) the most recent determination letter any currently effective determination, opinion or opinion advisory letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statements5500; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required all material Contracts related to be performed under the Codesuch Employee Plan, including all service provider agreements, (vi) all material and nonroutine correspondence since January 1, 2018 to or from any Governmental Body relating to such Employee Plan; and (vivii) all coverage, nondiscrimination, top heavy and Code Section 415 tests performed with respect to such Employee Plan for the three most recently completed plan years. Solely for purposes of this Section 4.18(e) and Section 4.18(e) of the Company Disclosure Schedule, the definition of “Employee Plan” shall exclude the following: any employment agreements and offer letters for non-officer employees of any of the Acquired Companies that do not differ in any material non-routine communications respect from the form of such documents provided by the Company to Parent or Parent’s Representative and that can be terminated by the applicable Acquired Company without notice, severance or other cost or liability, equity grant notices, and related documentation, in each case, that do not differ in any material respect from the form of such documents provided by the Company to Parent or Parent’s Representative, with respect to employees of any Governmental Body regarding any Employee Planof the Acquired Companies and agreements with independent contractors entered into in the ordinary course of business that can be terminated upon no more than 30 days’ advance notice without cost or liability.
(df) Neither the Company Acquired Companies nor any of its ERISA Affiliates Affiliate has at any time sponsored, maintained, contributed to, or been required to contribute to, or had has any liability in under or with respect ofto, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) any plan that is or was subject to Section 302 or Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including (ii) any “multiemployer plan,” as defined in 3(37) or Section 4001 of ERISA. No Employee Plan is a , (iiii) a any “multiple employer plan” as defined in within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code, or (iiiv) a any “multiple employer welfare arrangement,” within the meaning of as defined in Section 3(40) of ERISA, “welfare benefit fund,” as defined in Section 419 of the Code, or voluntary employees’ beneficiary association under Section 501(c)(9) of the Code.
(eg) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the CodeCode and nothing has occurred that has adversely affected or could reasonably be expected to adversely affect the qualified status of any such Employee Plan or the tax-exempt status of any trust related thereto. Each of the Employee Plan is now and Plans has been operatedestablished, maintained, administered, operated and administered funded in compliance in all material respects with its terms and all applicable Legal RequirementsLaws, including but not limited to ERISA and the Code. No non-exempt “Acquired Company or any other Person (i) has breached any fiduciary duty imposed upon it by ERISA or any other Law with respect to any Employee Plan, or (ii) engaged in a prohibited transaction” (transaction within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code (and not otherwise exempt under Section 408 of ERISA and Section 4975 4975(c)(2) or 4975(d) of the codeCode) with respect to any Employee Plan. All contributions, premiums and other payments due or required to be paid to (or with respect to) any Employee Plan have been timely paid in accordance with the terms of such Employee Plan and applicable Law. No Acquired Company has occurred incurred (whether or is reasonably expected to occur not assessed), and there exists no condition or set of circumstances in connection with which any Acquired Company, Parent or any of their respective Subsidiaries or Affiliates could incur, directly or indirectly, any material penalty, Tax, fine, Encumbrance or liability under ERISA, the Code or any other Law (including under Section 409, 502(i) or 502(l) of ERISA or Section 4975, 4980B, 4980D, 4980H, 5000, 6721 or 6722 of the Code) with respect to any Employee Plan.
(fh) Except as set forth in Section 4.18(h) of the Disclosure Schedules, no Acquired Company or Employee Plan provides, is obligated to provide or has promised or agreed to provide (or contribute toward the cost of) life insurance, medical or other welfare benefits (within the meaning of Section 3(1) of ERISA) to any Company Associate after his or her retirement or other termination of employment or service, except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associateby applicable Law.
(gi) Since No claim (other than routine claims for benefits) or Legal Proceeding is pending or, to the Knowledge of the Company, since January 1, 2019, all individuals who perform threatened with respect to (or have performed services for against the Company have been properly classified under applicable law as (iassets of) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending ornor, to the knowledge Knowledge of the Company, threatened inquiry is there any reasonable basis for any such claim or audit from Legal Proceeding. No Employee Plan is (or during since January 1, 2019 has been) the subject of any audit, examination, investigation or other Legal Proceeding by any Governmental Body concerning such classifications.
(h) The Company maintains no obligations or a participant in any amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Body, and to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 the Knowledge of the Code.
(i) Each “nonqualified deferred compensation plan” maintained Company, no such audit, examination or Legal Proceeding is contemplated or under consideration by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunderany Governmental Body.
(j) The Each Employee Plan that provides nonqualified deferred compensation subject to Section 409A of the Code satisfies in form and operation all of the requirements of Sections 409A(a)(2), 409A(a)(3) and 409A(a)(4) of the Code and the guidance thereunder (and has satisfied such requirements for the entire period during which Section 409A of the Code has applied to such Employee Plan).
(k) Except for as set forth on Schedule 7.15(e) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the Transactions will (including alone or in combination with any other events or circumstancesevent) will not (i) result in any forgiveness of indebtedness, payment or benefit becoming due to any current or former Company Associate Associate, including any severance or under any Employee Planother cash payment, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of paymentpayment or vesting, funding or vesting of the increase in the amount of, compensation or benefits due to any such Company Associate, (iii) directly or indirectly cause an Acquired Company to transfer or set aside any assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, or (iv) limit impair the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment rights of any amount that couldAcquired Company, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code Parent or any amount that would not be deductible of their respective Subsidiaries or Affiliates under Section 280G of the Code.
(l) With or with respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in including the ordinary course) are pendingright to amend, or, to the knowledge of the Company, threatened against terminate or merge any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 2 contracts
Samples: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
Employee Matters; Benefit Plans. (a) Subject to Section 4.18 of the Company Disclosure Letter sets forth a complete and accurate list of each material Employee Plan.
(b) Except as required by applicable Legal RequirementsLaws, the employment of each of any of the Company’s Acquired Companies’ employees is terminable by the such Acquired Company at will. The .
(c) As of the Agreement Date, no Acquired Company is not party to or bound by, has a party toduty to bargain for, nor or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge Knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Companies. Since January 1, 20192021, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or, to the Knowledge of the Company, any question concerning labor representation or any union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting any of the Company’s Acquired Companies or any of its employees. There As of the Agreement Date, there is not now pending, and, to the knowledge Knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or dispute, question concerning labor representation, union organizing activity activity, or any threat thereof, or any similar activity or dispute.
(bd) Since January 1, 2019As of the Agreement Date, there has been is no material Legal Proceeding pending or, to the knowledge Knowledge of the Company, threatened in writing relating to the employment or engagement of including any Company Associate. Since January 1, 2019, the Company has complied with all applicable Legal Requirements related relating to employment, including employment practices, payment of wages and hours of workhours, leaves leave of absence, plant closing notification, employment statute or regulation, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation or discrimination matters involving any Company Associate. Each Acquired Company is in material compliance with all applicable Laws related to employment, including applicable Laws relating to employment practices, equal employment opportunities, plant closing notification (including the WARN Act), privacy rights, labor disputerelations, workplace safety, discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and discrimination matterstermination of employees, except any lack working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of compliance which has not had absence, paid sick leave and would not reasonably be expected to result in a Material Adverse Effectunemployment insurance.
(ce) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statements5500; (iv) the most recent summary plan descriptions and any material modifications thereto; and (v) the most recent nondiscrimination tests required all material correspondence to be performed under the Code; and (vi) any material non-routine communications with or from any Governmental Body regarding related to any such plan. For purposes of this Section 4.18(e) and Section 4.18(e) of the Company Disclosure Letter, the definition of “Employee Plan” shall exclude any employment, termination or severance agreement for non-officer employees of any of the Acquired Companies and equity grant notices, and related documentation, with respect to employees of any of the Acquired Companies and agreements with consultants entered into in the ordinary course of business.
(df) Neither the Company Acquired Companies nor any of its ERISA Affiliates has at any time sponsoredAffiliate has, during the past six (6) years maintained, contributed to, or been required to contribute to, or had any liability in respect of, to (i) an “any employee pension benefit plan” (as defined in Section 3(2) of ERISA) plan that is or was subject to Title IV of ERISA, Code Section 412 or of the Code, Section 302 of ERISA, including any (ii) a “multiemployer plan” as defined in within the meaning of Section 4001 3(37) of ERISA. No Employee Plan is a , (iiii) a any funded welfare benefit plan within the meaning of Section 419 of the Code, (iv) any “multiple employer plan” as defined in (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or (iiv) a any “multiple employer welfare arrangement” within the meaning of (as such term is defined in Section 3(40) of ERISA).
(eg) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained is the subject of a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Code and, to the Knowledge of the Company, there are no existing circumstances that would reasonably be expected to adversely affect the qualified status of any such plan.
(h) Each Employee Plan is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal RequirementsLaws, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by Except as set forth in Section 4.18(i) of the Company has been at all times in material documentary and operational compliance with Disclosure Letter, neither the requirements execution of Code Section 409A and this Agreement nor the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of paymentpayment or vesting, funding or vesting of any an increase in the amount of, compensation or benefits due to any current or former employee, contractor or director Company Associate (other than accelerated vesting required under Section 411(d)(3) of the Company Code). Without limiting the generality of the foregoing, no amount paid or under payable (whether in cash, in property or in the form of benefits) by any Employee Plan, (iv) limit of the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of Acquired Companies in connection with the Transactions (including either solely as a result thereof or as a result of such transactions in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination conjunction with any other payment or benefit, constitute event) will be an “excess parachute payment” within the meaning of Section 280G of the Code, result in . No Employee Plan provides for the payment gross-up or reimbursement of an excise tax by any Person Taxes under Section 409A or 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(lj) With respect There are no pending or, to the Knowledge of the Company, threatened claims by or on behalf of any Employee Plan, (i) no Legal Proceeding or by or on behalf of any participants or beneficiaries of any Employee Plan (other than routine claims for benefits benefits), alleging any violation of ERISA or other applicable Law, and no Employee Plan is the subject of any pending investigation or audit by any Governmental Body.
(k) Except as set forth in the ordinary courseSection 4.18(k) are pending, or, to the knowledge of the CompanyCompany Disclosure Letter, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any no Employee Plan that is a “welfare benefit plan” within the meaning of Section 3(1) of ERISA provides life insurance or health benefits with respect to any former or current service provider (or any dependent thereof) of the operation thereofAcquired Companies for more than 18 months beyond the service provider’s termination of employment or service with the Acquired Companies, other than coverage mandated by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or any similar state Law.
(l) The Company will have paid the entirety of any annual, quarterly or other short-term bonus or bonuses, as applicable, in respect of calendar year 2023 or any performance period within such year (collectively, the “2023 Bonus”) prior to the Closing. The Company has made available to Parent a list of each Company Associate receiving a 2023 Bonus and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any the amount of such Legal Proceeding2023 Bonus.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Corporations’ employees is terminable by the Company applicable Acquired Corporation at will. The Company .
(i) No Acquired Corporation is not a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. an Acquired Corporation.
(ii) Since January 1, 20192011, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting the Acquired Corporation or any of the Company’s their employees. There , no such action set forth in this Section 3.16(b)(ii) is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, commence any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or disputeaction set forth in this Section 3.16(b)(ii).
(biii) Since January 1, 2019, there has been There is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment, including relating to any Company Employee Agreement, Employee Plan, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate. , including charges of unfair labor practices or harassment complaints, in each case that involve actual or claimed damages in excess of $500,000 individually.
(iv) Since January 1, 20192011, the Company has Acquired Corporations have complied in all material respects with all applicable Legal Requirements related to labor, employment, including fair employment practices, payment wages, hours and other terms and conditions of wages employment (including the classification and hours compensation of workemployees for purposes of the Fair Labor Standards Act and cognate state laws), leaves of absenceworkers’ compensation, occupational safety and health, affirmative action, employee privacy and plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigrationclosings, and discrimination mattersother Legal Requirements in respect of any reduction in force, except any including notice, information and consultation requirements, the lack of compliance which with which, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(c) Section Part 3.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of the material Employee Plans (other than (i) any employment or other agreements for non-officer employees of any Acquired Corporation that do not provide for any severance benefits, (ii) individual equity grant notices and agreements, and related documentation, with respect to employees and other service providers of the Acquired Corporation, and (iii) agreements with consultants entered into in the ordinary course of business) and separately identifies each material Employee Plan that is maintained primarily for the benefit of employees outside the United States, including each material old age part time and early retirement scheme, retirement plan, pension plan (funded and unfunded), deferred compensation and life insurance plan (each, a “Foreign Employee Plan”). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevantof: (i) all plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (“DOL”), (iii) the most recent determination letter or opinion letter received from annual actuarial valuation, if any, and the IRS; (iii) for the three most recent plan years, annual report (A) the annual actuarial or other valuation reports, (B) the IRS Form Series 5500 and all schedules thereto and (C) audited financial statements; statements attached thereto), (iv) the most recent summary plan descriptions and any material modifications thereto; , (v) the most recent nondiscrimination tests required to be performed under the Code; Code (including 401(k) and 401(m) tests) for each Employee Plan, and (vi) all material correspondence to or from the IRS, the DOL, or any material non-routine communications with any other Governmental Body regarding any Employee Plansince January 1, 2011 through the business day prior to the date hereof.
(d) Neither an Acquired Corporation nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company nor any of its under the Code or ERISA Affiliates has at any time sponsored, ever maintained, established, participated in or contributed to, or is or has been required to contribute to, or had has otherwise incurred any obligation or liability in respect of, (iincluding any contingent liability) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) under a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Foreign Employee Plan is required to be treated as a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISAbenefit plan under GAAP.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plan Plans is now and has been operatedestablished, maintained, operated and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within Except as required by this Agreement, neither an Acquired Corporation, nor, to the meaning of Section 406 of ERISA and Section 4975 of the code) Company’s knowledge, any other Person, has occurred made any binding commitment to modify, change or is reasonably expected to occur terminate any Employee Plan, other than with respect to modifications, changes or terminations required by any Legal Requirement or made in the ordinary course of business as part of annual changes in health and welfare benefit plans. None of the Acquired Corporations have engaged in a transaction in connection with which such Acquired Corporation reasonably would be subject to either a material liability pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code that is not curable without material cost to the Acquired Corporations. For the last six (6) years, the Acquired Corporations have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the Company, there is no default or violation by any other party to, any Employee Plan.
(f) Since January 1, 2011, no suit, administrative proceeding, or action (including any audit or inquiry by the IRS or the DOL) has been brought against or with respect to any Employee Plan (other than routine claims for benefits arising under such plans).
(g) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company any Acquired Corporation nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of an Acquired Corporation pursuant to any Company Associateretiree medical, retiree disability, retiree life insurance benefit plan or other retiree welfare plan.
(gh) Since January 1All Foreign Employee Plans comply in all material respects with applicable local Legal Requirements, 2019, and all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employeessuch plans that are intended to be funded and/or book-reserved are funded and/or book-reserved, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws)appropriate, and no such individual has been improperly included or excluded from any Employee Planbased on reasonable actuarial assumptions, except for misclassifications, nonwhere such failure to comply or failure to be so funded and/or book-compliance or exclusions which reserved has not had and would not reasonably be expected to to, individually or in the aggregate, result in a Material Adverse Effect and the Company has not received notice of any pending or, material liability to the knowledge Acquired Corporations or otherwise interfere in any material respect with the conduct of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Codetheir respective businesses as now being conducted.
(i) Each “nonqualified deferred compensation plan” maintained by Neither the Company has been at all times in material documentary and operational compliance with execution of this Agreement nor the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to entitle any current or former employee, director, officer, independent contractor or director other service provider of an Acquired Corporation to severance pay or any material increase in severance pay, (ii) accelerate the Company time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor, (iii) directly or indirectly cause the Acquired Corporations to transfer or set aside any material assets to fund any benefits under any Employee Plan, (iv) otherwise give rise to any material liability under any Employee Plan, (v) limit or restrict the right to modifymerge, amend amend, terminate or terminate transfer any material assets of any Employee Plan on or following the Effective Time or (except any limitations imposed by applicable Legal Requirements, if any).
(kvi) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that couldwould reasonably be expected, individually or in combination with any other payment or benefitsuch payment, to constitute an “excess parachute payment” within the meaning of as defined in Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G 280G(b)(1) of the Code.
(lj) With respect Each Employee Plan or other Contract that is subject to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge Section 409A of the Company, threatened against any Employee Plan, Code has been administered in compliance with its terms and the assets operational and documentary requirements of any Section 409A of the trusts under such plans or Code and the plan sponsor or administratorregulations thereunder, or against except for any fiduciary instances of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist noncompliance that could would not reasonably be expected to give rise result in a material liability to the Acquired Corporations. The Acquired Corporations do not have an obligation to gross-up, indemnify or otherwise reimburse any current or former service provider of any Acquired Corporation for any Taxes incurred by such Legal Proceedingservice provider pursuant to Section 409A or 4999 of the Code.
Appears in 1 contract
Samples: Merger Agreement (Volcano Corp)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Acquired Company’s employees is terminable by the applicable Acquired Company at will. The A true and complete copy of the current version of each policy manual and handbook provided to or governing the employees of the Acquired Companies, and of each application form currently being used by the Acquired Companies in connection with the hiring of new employees, has been provided to Purchaser. Except as set forth in Part 3.17(a) of the Company Disclosure Schedule, (i) during the 90 days preceding the date hereof, there have been no terminations, layoffs, voluntary departures, or retirements of any employees or independent contractors of the Acquired Companies and (ii) the Acquired Companies do not intend as of the date hereof to carry out any terminations or layoffs of any employees or independent contractors of the Acquired Companies during the Pre-Closing Period.
(b) None of the Acquired Companies is not a party toto any collective bargaining Contract or other Contract with, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees employees, and there are no unions, labor organizations organizations, or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Companies. Since January 1No collective bargaining Contracts applicable to the Company exist with respect to any of the Acquired Companies. There is not pending, 2019, and there has not been at any time in the past five (5) years, any strike, slowdown, work stoppage, lockout, material labor dispute picketing, application, petition, or any demand for recognition or certification of a collective bargaining agent, question concerning representation, union organizing activity, or any threat thereof, in each case, involving any of the Company’s employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been affecting any of the Acquired Companies or any of their respective employees. There is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the any Employee Plan, employment contract, restrictive covenant, invention assignment agreement, patent disclosure agreement, non-competition agreement, non-solicitation agreement, confidential information or engagement of any Company Associate. Since January 1trade secret, 2019, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of workhours, leaves leave of absence, overtime pay, plant closing notification, employment statute or regulation, fiduciary duty or any other common law obligation related to employment, privacy rightsright, labor dispute, workplace workers’ compensation policy or long-term disability policy, safety, retaliation, immigration, classification, discrimination, or whistleblower matters involving any Company Associate, including charges of unfair labor practices (including equal employment opportunity laws), terms and discrimination mattersconditions of employment, except occupational safety and health, affirmative action, employee privacy or harassment complaints; and neither the Company nor the Acquired Companies are aware that any lack such violations have occurred. The Acquired Companies are in material compliance with any applicable government contractor requirements. The Acquired Companies are in material compliance with all Legal Requirements respecting labor pay and benefits, employment, fair employment practices (including equal employment opportunity laws), terms and conditions of compliance which has not had employment, workers’ compensation, occupational safety and would not reasonably be expected health, affirmative action, employee privacy, notice and other requirements under the Worker Adjustment and Retraining Notification Act of 1988, as amended (“WARN Act”) and any other similar applicable foreign, state or local Legal Requirements of any jurisdiction relating to result any plant closing or mass layoff (or similar triggering event), or wages and hours. None of the Acquired Companies has, in the last three (3) years, effectuated a Material Adverse Effect“plant closing” or “mass layoff” (as defined in the WARN Act). None of the employees of the Acquired Companies will have suffered an “employment loss” (as defined in the WARN Act) under the WARN Act in the six (6) months prior to the Closing Date, and neither the Company, nor any of the Acquired Companies, must give any WARN Act or similar notice in connection with the Transactions.
(c) Section 3.16(cNone of the Acquired Companies is delinquent in any material respect in payments to any Company Associate for any wages, salaries, overtime pay, vacation pay, commissions, bonuses or other direct compensation for any services performed for it or amounts required to be reimbursed to such Company Associates. Each of the Acquired Companies has made all required payments to its unemployment compensation reserve accounts with the appropriate Governmental Body of the states or other jurisdictions where it is required to maintain such accounts. None of the Acquired Companies is liable for any payment to any trust or other fund or to any Governmental Body, with respect to unemployment compensation benefits, social security or other benefits or obligations for Company Associates (other than routine payments to be made in the ordinary course of business consistent with past practice) and freelancer/independent contractors. Each of the Acquired Companies has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to employees or consultants and is not liable for any arrears of wages or any Tax or any penalty or interest for failure to comply with any of the foregoing, except as would not result in any material liability, either individually or in the aggregate.
(d) Part 3.17(d) of the Company Disclosure Schedule sets forth a true and complete and accurate list of each material Employee Plan. The No Acquired Company has either delivered any agreement, arrangement, commitment or made available obligation, whether formal or informal, whether written or unwritten and whether legally binding or not, to create, enter into or contribute to any additional material Employee Plan, or to modify or amend any existing material Employee Plan except as may be required by any Legal Requirement.
(e) With respect to each material Employee Plan (to the extent applicable), the Company has provided to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, accurate true and complete copies of the following, as relevantof: (i) all plan documents and embodying such Employee Plan (including all amendments thereto) or, and all related trustif such Employee Plan is not in writing, insurance or other funding documents, and all amendments theretoa written description of such Employee Plan; (ii) the most recent determination letter or opinion letter received from the IRSannual report (Form 5500 series and all schedules and financial statements attached thereto) filed with respect to such Employee Plan; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions description, and any all summaries of material modifications related thereto, distributed with respect to such Employee Plan; (iv) all material Contracts relating to such Employee Plan, including all trust agreements, investment management Contracts, annuity Contracts, insurance Contracts, bonds, indemnification Contracts and service provider Contracts; (v) the most recent nondiscrimination tests required determination, opinion or advisory letter, as applicable, issued by the IRS with respect to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No such Employee Plan that is a (i) a “multiple employer plan” as defined in intended to qualify pursuant to Section 413(c401(a) of the Code; (vi) the most recent annual actuarial valuation prepared for such Employee Plan; (vii) the most recent financial statement prepared for such Employee Plan; (viii) all coverage, or nondiscrimination, top heavy and Code Section 415 tests performed with respect to such Employee Plan for the three (ii3) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISAmost recently completed plan years.
(ef) Except as would not have a Material Adverse Effect, each Employee Plan has been maintained, funded, operated and administered in accordance with its terms and with all applicable Legal Requirements, including the applicable provisions of ERISA, the Code, and any applicable regulatory guidance issued by any Governmental Body.
(g) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a is the subject of an unrevoked favorable determination letter (or opinion letter, if applicable) as letter from the IRS with respect to its such Employee Plan’s qualified status under the Code, or has pending or has time remaining in which to file an application for such letter. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited The Acquired Companies have made available to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 Parent a copy of the code) has occurred or is reasonably expected to occur with respect to any most recent such letter for each such Employee Plan.
(fh) Except to the extent required under Section 601 et seq. of ERISA or 4980B As of the Code date of this Agreement, there is no Legal Proceeding (or any other similar state or local Legal Requirementthan routine claims for benefits) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry with respect to (or audit from any Governmental Body concerning such classifications.
(hagainst the assets of) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable nor to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director knowledge of the Company or under is there a reasonable basis for any Employee Plansuch Legal Proceeding, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) that have been or are pendingbeing handled through an administrative claims procedure. No Employee Plan is currently under investigation, oraudit or review, directly or indirectly, by any Governmental Body, and, to the knowledge of the Company, threatened against no such action is contemplated or under consideration by any Employee Plan, the assets of any Governmental Body.
(i) Except as set forth on Part 3.17(i) of the trusts under such plans Company Disclosure Schedule, no Acquired Company or the plan sponsor ERISA Affiliate sponsors, maintains or administratorcontributes to or has ever sponsored, maintained or against contributed to (or been obligated to sponsor, maintain or contribute to) or has any fiduciary of any Employee Plan direct, indirect or contingent liability with respect to to: (i) a “multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of ERISA or 414(f) of the operation thereof, and Code; (ii) a multiple employer plan within the meaning of Section 210, 4063 or 4064 of ERISA or Section 413(c) of the Code; (iii) an employee benefit plan that is subject to Section 302 of ERISA, Title IV of ERISA or Section 412 of the Code; (iv) a “multiple employer welfare arrangement,” as defined in Section 3(40) of ERISA; or (v) a self-funded (or self-insured) health plan.
(j) Each Employee Plan that is subject to COBRA has been administered, at all times since its inception and in all material respects, in compliance with such requirements. None of the Employee Plans provides severance, life insurance, medical or other welfare benefits (within the meaning of Section 3(1) of ERISA) to any current or former employee of any Acquired Company or any ERISA Affiliate (or to any other Person) after his or her retirement or other termination of employment or service, and no facts Acquired Company or circumstances exist that could reasonably be expected to give rise ERISA Affiliate has ever represented, promised or contracted (whether in written or oral form) to any such Legal Proceeding.employee or former employee (or to any other Person) that such benefits would be provided, except to the extent required by Section 4980B(f) of the Code and Part 6 of Subtitle B of Title I of ERISA or mandated by a foreign (i.e., non-United States)
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rightside Group, Ltd.)
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. The No Acquired Company is not a party to, nor and no Acquired Company is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees employees, and there are no labor organizations representing, purporting to represent representing or, to the knowledge of the Company, seeking to represent any employees of the CompanyAcquired Companies. Since January 1, 2019, there There has not been any strike, slowdown, work stoppage, lockout, material labor dispute or any union organizing activity, or any threat thereof, in each case, involving any of the Company’s employees. There is not now pending, andor, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or written threat thereof involving any similar activity employees of the Acquired Companies. There are no unfair labor practice charges or dispute.
(b) Since January 1, 2019, there has been no material Legal Proceeding complaints pending or, to the knowledge of the Company, threatened in writing relating to against any Acquired Company before the employment National Labor Relations Board or engagement of any Company Associatesimilar Governmental Body. Since January 1, 2019, the Company has The Acquired Companies have complied with all applicable Legal Requirements related to employment, including termination of employment, employment practices, payment of wages and salaries, withholding, hours of work, leaves of absence, plant closing notification, privacy rightsnotifications, labor disputedisputes, workplace safety, discrimination in employment, harassment and retaliation, immigrationimmigration (including complying with all Form I-9 requirements and verifications of authorization to work in the United States), and discrimination matters, worker classification (including properly classifying its workers as (i) independent contractors and consultants; and (ii) exempt and non-exempt) except any lack of where the failure to be in compliance which has not had and would not reasonably be expected expected, individually or in the aggregate, to result in constitute a Material Adverse Effect.
(cb) Except as set forth in Section 3.16(c3.17(a) of the Company Disclosure Schedule Letter, there are no administrative charges, demands, consent decrees, internal complaints or court complaints or, to the knowledge of the Company, audits or investigations against any Acquired Company (or any current or former officer, director or employee of any Acquired Company) concerning alleged employment discrimination, wage and hour issues, worker classification or workplace safety, or any other employment related matters pending or, to the knowledge of the Company, threatened before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor or any other Governmental Body. Acquired Companies have paid in full to all current and former employees, independent contractors and consultants all wages, salaries, bonuses, commissions, accruals, benefits, compensation, and other payments due to or on behalf of such employees, independent contractors and consultants.
(c) The Acquired Companies have maintained workers’ compensation coverage as required by applicable law through the purchase of insurance and not by self-insurance or otherwise. The Acquired Companies are not liable for any payment to any trust or other fund or to any Governmental Body with respect to unemployment compensation benefits, social security, income or any other Tax, workers’ compensation or other benefits or obligations for employees (other than routine payments to be made in the ordinary course of business, consistent with past practice). Except as set forth in Section 3.17(a) of the Company Disclosure Letter, to the knowledge of the Company, there are no pending claims against any Acquired Company under any workers’ compensation plan or policy, long term disability plan or policy, or any other benefits plan sponsored by any Acquired Company.
(d) To the knowledge of the Company, no allegations of sexual harassment or sexual misconduct have been made at any time against (i) any current or former director, officer or manager of any Acquired Company or (ii) any employee of any Acquired Company who supervises other employees of any Acquired Company. Acquired Companies have not entered into any settlement agreement related to allegations of sexual harassment or sexual misconduct against any current or former director, officer, or manager of any Acquired Company or any employee of any Acquired Company who supervises other employees of any Acquired Company.
(e) Section 3.17(e) of the Company Disclosure Letter sets forth a complete and accurate list list, as of the date of this Agreement, of the material Employee Plans. With respect to each such Employee Plan. The , the Company has either delivered or made available to Parent or Parent’s Representatives (or publicly made available in EXXXX) prior to the execution of this Agreement with respect to each Employee Plan, accurate and complete copies of the following, as relevant: following (if and to the extent existing for such Employee Plan): (i) all plan documents and all amendments theretothereto (or written descriptions of any Employee Plans that are not set forth in writing), and all related trusttrust agreements, insurance Contracts or other funding documents, and all amendments thereto; (ii) the most recent determination letter or opinion letter received from Form 5500 (including all schedules and financial statements attached thereto) filed with the IRS; (iii) IRS for the three (3) most recent recently completed plan years, (Aiii) the annual actuarial or other valuation reportsmost recent summary plan description and any material modifications thereto, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions determination, advisory or opinion letter from the IRS, and any material modifications thereto; (v) the most recent nondiscrimination tests required all material correspondence to be performed under the Code; and (vi) any material non-routine communications with or from any Governmental Body regarding received in the last three (3) years with respect to any Employee Plan.
(df) Neither Each of the Company nor any of its ERISA Affiliates Employee Plans is now and has at any time sponsoredall times been established, maintained, contributed to, or been required to contribute to, or had any liability operated and administered in respect of, compliance in all respects with its terms and all applicable Legal Requirements (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISAERISA and the Code). No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) Each of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code is so qualified and has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and to the knowledge of the Company, nothing has occurred since the date of any such determination that could reasonably be expected to give the IRS grounds to revoke such determination. Each There are no pending or, to the knowledge of the Company, threatened actions, disputes, suits, claims, arbitrations or legal, administrative or governmental action against any Employee Plan, and all contributions, premiums and any other payments required to be made by any Acquired Company or any ERISA Affiliate to any Employee Plan is now and has have been operated, maintained, and administered in compliance in all material respects with its terms and all made on or before their applicable Legal Requirements, including but not limited to ERISA and due dates. There have been no prohibited transactions or breaches of any of the Code. No non-exempt duties imposed on “prohibited transactionfiduciaries” (within the meaning of Section 406 3(21) of ERISA) by ERISA that reasonably be expected to, subject any Acquired Company or any Employee Plan to either a liability pursuant to Section 502 of ERISA and or a Tax imposed pursuant to Section 4975 or 4976 of the code) has occurred or is reasonably expected to occur with respect to any Employee PlanCode.
(fg) No Acquired Company, nor any other ERISA Affiliate, has sponsored, maintained, contributed to or been required to contribute to (i) a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan” (in each case, as defined in Section 4001 of ERISA), (ii) a “multiple employer plan” (within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code), or (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(h) Except to the extent required under Section 601 et seq. of ERISA or Section 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the no Acquired Company nor any or Employee Plan has any present or future obligation to provide post-employment welfare benefits to to, or make any payment to, any present or with respect former employee, officer, director, independent contractor or other individual service provider of any Acquired Company pursuant to any Company Associate.
(g) Since January 1, 2019, all individuals who perform retiree medical benefit plan or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Codeother retiree welfare plan.
(i) Each “nonqualified deferred compensation plan” maintained by Except as provided in Section 2.4, the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including either alone or in combination with other events or circumstances) will not (i) result in cause any severance pay, unemployment compensation or other payment or benefit becoming to become due to from any Acquired Company Associate (or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor director, officer, independent contractor, or director other individual service provider of any Acquired Company (or the dependents of any such Person), or (ii) accelerate the time of payment, vesting or funding of, or increase the amount of, compensation or benefits due to any such current or former employee, director, officer, independent contractor, or other individual service provider (or the dependents of any such Person) from any Acquired Company (or under any Employee Plan). No payment or other entitlement which is or may be made to any participant, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually either alone or in combination conjunction with any other payment payment, event or benefitoccurrence, constitute will or could properly be characterized as an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(j) No Acquired Company has any obligation to gross-up, indemnify or otherwise reimburse any current or former service provider to any Acquired Company for any Tax incurred by such service provider pursuant to Section 409A or 4999 of the Code.
(k) The Company has delivered or made available to Parent or Parent’s Representatives (or publicly made available in EXXXX) a copy of the Company Equity Plans and the forms of award agreements evidencing the Company Equity Awards outstanding as of the date of this Agreement.
(l) With respect All individuals who perform services for any Acquired Company have been classified correctly, in accordance with the terms of each Employee Plan and ERISA, the Code, the Fair Labor Standards Act and all other applicable Legal Requirements, as employees, independent contractors or leased employees, and no Acquired Company has received notice to the contrary from any Person or Governmental Body.
(m) No Employee Plan, (i) no Plan is maintained outside of the United States for the benefit of current and former service providers of any Acquired Company or otherwise is subject to the Legal Proceeding (Requirements of any Governmental Body other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge those of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal ProceedingUnited States.
Appears in 1 contract
Samples: Merger Agreement (Conformis Inc)
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the The employment of each of the Company’s employees is terminable by the Company at will. .
(b) The Company is not a party to, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge Knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 20192016, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting the Company or any of the Company’s its employees. There is not now pending, and, to the knowledge Knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been . There is no material Legal Proceeding pending or, to the knowledge Knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters, including charges of unfair labor practices or harassment complaints. Since January 1, 20192016, the Company has complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours, worker classification and other terms and conditions of wages employment and hours other Legal Requirements in respect of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result reduction in a Material Adverse Effectforce.
(c) Section Part 3.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of each the material Employee PlanPlans. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statements5500; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any all material non-routine communications with correspondence to or from any Governmental Body regarding any relating to such Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Company under the Code or ERISA has during the past six years maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Section 302 or Title IV of ERISA, ERISA or Code Section Sections 412 or Section 302 of ERISA4971, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Code Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within All contributions or other amounts payable by the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur Company with respect to any each Employee PlanPlan in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP.
(f) Except as set forth on Part 3.16(f) of the Company Disclosure Schedule and except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1There are no Legal Proceedings pending, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge Knowledge of the Company, threatened inquiry or audit from by any Governmental Body concerning such classificationsor by any employee or beneficiary covered under any Employee Plan that involve any Employee Plan (except routine claims for benefits payable under the Employee Plans).
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred Except as provided by such individual under Sections 409A or 4999 of Section 2.8(a), the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in entitle any payment current or benefit becoming due to any former Company Associate to severance pay or under any Employee Planother cash payment, in each case, in excess of $100,000, (ii) accelerate the time of payment or vesting, or increase any the amount of of, compensation or benefits otherwise payable due to any such Company Associate or under any Employee PlanAssociate, (iii) result in directly or indirectly cause the acceleration of the time of payment, funding Company to transfer or vesting of set aside any assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) otherwise give rise to any liability under any Employee Plan, (v) result in any “excess parachute payment” (within the meaning of Code Section 280G) becoming due to any current for former Company Associate, or (vi) limit or restrict the right Company to modifymerge, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any)Plan.
(ki) The consummation Company is not a party to, or is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of the Transactions Taxes imposed under Code Sections 409A or 4999 (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G corresponding provisions of the Codestate or local law relating to Tax).
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Samples: Merger Agreement (Senomyx Inc)
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. The Company is not a party to, nor has no duty to bargain for, and is not currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization organization, union or work works council representing any of its employees and there are no labor organizations organizations, unions or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 2019, 2021 there has not been any strike, material slowdown, work stoppage, lockout, material picketing or labor dispute or any union organizing activitydispute, or any threat thereof, in each case, involving any of the Company’s employees. There is not now pending, andor, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity threat thereof affecting the Company or any similar activity or dispute.
(b) of its employees. Since January 1, 20192021, there and except for those matters as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Company has been complied with all applicable Legal Requirements related to labor, employment and employment practices, including any pertaining to: terms and conditions of employment; background checks; pay equity; payment of wages; hours of work meal breaks or rest breaks; vacation, sick leave and other leaves of absence; employment policies and documentation; termination of employment, layoffs and plant closings; employment statutes or regulations; workplace health and safety; harassment, retaliation and discrimination; unfair labor practices; disability rights; accommodation; immigration; workers’ compensation; unemployment insurance; whistleblowing; background checks; collective bargaining; classification of employees as exempt or non-exempt; independent contractors; and contingent workers (collectively, “Labor and Employment Laws”). There is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing against the Company relating to the employment or engagement of any Company Associatesuch Labor and Employment Laws. Since January 1, 20192021, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effect.
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance or other funding documents, and all amendments thereto; (ii) the most recent determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending ornot, to the knowledge of the Company, threatened inquiry been subject to any complaint alleging, or audit from entered into any Governmental Body concerning such classificationssettlement related to an allegation of sexual harassment against any of its officers or executives.
(hb) The Company maintains no obligations has made available to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 the Parent a correct and complete list of all current employees of the Code.
Company, including, each such employee’s (i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events name or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Planemployee ID number, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plantitle, (iii) result in the acceleration date of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Planhire, (iv) limit the right to modifywork location (including city and state), amend (v) “exempt” or terminate any Employee Plan “non-exempt” classification for overtime purposes, (except any limitations imposed by applicable Legal Requirementsvi) base salary or base wage rate, (vii) leave status and anticipated return date (if anyapplicable) and (viii) work authorization type and expiration date (if applicable).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the CompanyAcquired Corporation’s employees is terminable by the Company applicable Acquired Corporation at will. The .
(b) Except as set forth in Part 2.15(b) of the Company Disclosure Schedule, none of the Acquired Corporations is not a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Corporations. Since January 1, 20192012, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting any of the Company’s Acquired Corporations or any of their employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similar activity or dispute.
(b. Except as set forth in Part 2.15(b) Since January 1, 2019of the Company Disclosure Schedule, there has been is no material Legal Proceeding claim or grievance pending or, to the knowledge of the Company, threatened in writing relating to the any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 20192012, the Company has complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours and other terms and conditions of wages employment (including the classification and hours compensation of workemployees for purposes of the Fair Labor Standards Act and cognate state laws) and other reductions in force (including notice, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, information and discrimination mattersconsultation requirements), except for any lack instances of compliance which has not had and noncompliance that would not reasonably be expected to result in a Material Adverse Effectmaterial liability to the Acquired Corporations.
(c) Section 3.16(cPart 2.15(c) of the Company Disclosure Schedule sets forth a true and complete and accurate list of each the Employee PlanPlans (other than any employment, termination or severance agreement for non-officer employees of the Company and its Subsidiaries and equity grant notices, and related documentation, with respect to employees of the Company and its Subsidiaries). The Company has either delivered or made available to Parent Buyer or ParentBuyer’s Representatives prior to the execution of this Agreement with respect to each Employee PlanPlan true, accurate correct and complete copies of the following, as relevantof: (i) all plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (“DOL”), (iii) the most recent determination letter or opinion letter received from annual actuarial valuation, if any, and the IRS; (iii) for the three most recent plan years, annual report (A) the annual actuarial or other valuation reports, (B) the IRS Form Series 5500 and all schedules thereto and (C) audited financial statements; statements attached thereto), (iv) the most recent summary plan descriptions and any material modifications thereto; , (v) the most recent nondiscrimination tests required to be performed under the Code (including 401(k) and 401(m) tests) for each Employee Plan that is subject to any discrimination testing requirements under the Code; , and (vi) all correspondence to or from the IRS, the DOL, or any material non-routine communications with any other Governmental Body regarding any Employee Plansince January 1, 2012.
(d) Neither None of the Company Acquired Corporations nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with an Acquired Corporation under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion or advisory letter, if applicable) as to its qualified status under the Code, each such Employee Plan has timely adopted all currently effective amendments to the Code to the extent any such amendments are required under the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect adversely the qualified status of any such Employee Plan. Each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within None of the meaning of Acquired Corporations is or reasonably could be subject to either a material liability pursuant to Section 406 502 of ERISA and or a Tax imposed pursuant to Section 4975 or 4976 of the codeCode. For the last six (6) has occurred years, the Acquired Corporations have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the Company, there is reasonably expected to occur with respect to no material default or violation by any other party to, any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B 4480 B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company Acquired Corporations nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Acquired Corporations pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1, 2019, all individuals who perform or have performed services for Except as set forth in Part 2.15(g) of the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employeesDisclosure Schedule, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions transactions contemplated by this Agreement (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to entitle any current or former employee, director, officer, independent contractor or director other service provider of the Company Acquired Corporations to severance pay or any payment other than unemployment compensation or any accrued compensation or benefits such as wages, vacation, or expense reimbursements, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor (other than the accelerated vesting provided in any Employee Plan that is intended to be qualified under Section 401(a) of the Code), (iii) directly or indirectly cause the Acquired Corporations to transfer or set aside any material assets to fund any benefits under any Employee Plan, (iv) otherwise give rise to any material liability under any Employee Plan or (v) limit or restrict the right to modifyamend, amend terminate or terminate transfer any material assets of any Employee Plan on or following the Effective Time.
(except h) Except as set forth in Part 2.15(h) of the Company Disclosure Schedule, no Employee Plan is maintained primarily for the benefit of employees or other service providers who are primarily located outside of the United States (other than any limitations imposed by applicable Legal Requirementsemployment, if anytermination or severance agreement for non-officer employees of the Company or the Acquired Corporations, government mandated benefits, including consultation rights or notices, and equity grant notices, and related documentation, with respect to employees of the Company and the Acquired Corporations).
(ki) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount Each Employee Plan that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of is subject to Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 409A of the Code or has been administered in material compliance with its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder, except for any amount instances of noncompliance that would not reasonably be deductible under expected to result in a material liability to the Acquired Corporations. The Acquired Corporations do not have an obligation to gross-up, indemnify or otherwise reimburse any current or former service provider to the Acquired Corporations for any tax incurred by such service provider pursuant to Section 280G 409A of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Samples: Merger Agreement (Lyris, Inc.)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Corporations’ employees is terminable by the Company applicable Acquired Corporation at will. The Company .
(b) None of the Acquired Corporations is not a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Corporations. Since January 1, 2019, there There has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting any of the Company’s Acquired Corporations or any of their employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similar activity or dispute.
(b. Except as set forth in Part 3.16(b) Since January 1, 2019of the Company Disclosure Schedule, there has been is no material Legal Proceeding claim or grievance pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1Employee Agreement, 2019, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of workhours, leaves leave of absence, plant closing notification, employment statute or regulation, privacy rightsright, labor dispute, workplace workers’ compensation policy or long-term disability policy, safety, retaliation, immigrationimmigration or discrimination matters involving any Company Associate, and discrimination matters, except any lack including charges of compliance which has not had and unfair labor practices or harassment complaints.
(c) Except as would not reasonably be expected to result individually or in the aggregate have a Material Adverse Effect, in connection with the performance of services for the Acquired Corporations, no employee or other service provider of any of the Acquired Corporations has been subject to, or exposed to, unhealthy working conditions. For the avoidance of doubt, such conditions include but are not limited to, harassment, a hostile work environment, excessive stress and excessive work overload.
(cd) Section 3.16(cPart 3.16(d) of the Company Disclosure Schedule sets forth a true and complete and accurate list of each the material Employee PlanPlans. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, accurate and complete copies of the following, as relevant: (i) all agreement and plan documents and all material amendments theretothereto (or, with respect to any unwritten Employee Plan, a written description thereof), and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (“DOL”), (iii) the most recent determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reportsvaluation, if any, annual reports (B) the IRS Form Series 5500 and all schedules thereto and financial statements attached thereto) and tax returns (C) audited financial statements; Form Series 990), (iv) the most recent summary plan descriptions and any material modifications thereto; , and (v) all material correspondence to or from the most recent nondiscrimination tests IRS, the DOL, or any other Governmental Body for the last three years.
(e) There are no Employee Plans currently contributed to or sponsored by the Acquired Corporations for the benefit of any current or former employee, officer or director of the Acquired Corporations with respect to which the Acquired Corporations has any liability under Section 4069, 4201 or 4212(c) of ERISA or that would be required to be performed disclosed on a balance sheet prepared in accordance with GAAP.
(f) Each Employee Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter as to such qualification or registration from the IRS (or any comparable Governmental Body), and no event has occurred, either by reason of any action or failure to act, that would reasonably be expected to cause the loss of any such qualification, registration or tax-exempt status, except where such loss of qualification, registration or tax-exempt status would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in the payment or assessment by or against the Acquiring Corporations of any excise taxes under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan, except as would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.
(dg) Neither None of the Company Acquired Corporations nor any of its ERISA Affiliates has at any time sponsoredAffiliate or predecessor thereof maintains, sponsors or contributes to, or has, for the past six years maintained, sponsored or contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” plan (as defined in Section 3(2) of ERISA) ). None of the Employee Plans is subject to Title IV of ERISA, Code Section 412 ERISA and the Acquired Corporations have not incurred any direct or Section 302 indirect liability under or by operation of Title IV of ERISA.
(h) None of the Acquired Corporations nor any ERISA Affiliate or predecessor thereof contributes to, including or has in the past contributed to, any “multiemployer plan” plan as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(403(37) of ERISA.
(ei) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan Plans and Company Employee Agreements is now and has for the past six years been operated, maintained, and administered operated in compliance in all material respects accordance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the CodeCode except where the failure to operate such Employee Plans and Company Employee Agreements in accordance with their terms and applicable Legal Requirements did not and would not, individually or in the aggregate, have a Material Adverse Effect. No non-exempt “prohibited transaction” (within For the meaning of Section 406 of ERISA and Section 4975 past six years, the Acquired Corporations have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the code) has occurred Company, there is no default or is reasonably expected to occur with respect to violation by any other party to, any Employee PlanPlan or, except as would not, individually or in the aggregate, have a Material Adverse Effect, Company Employee Agreement.
(fj) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local an applicable Legal Requirement) at the participant’s sole expense, neither the Company Acquired Corporations nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to to, any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current present or former employee, contractor officer or director of the Company Acquired Corporations pursuant to any retiree medical benefit plan or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any)other retiree welfare plan.
(k) The consummation of There has been no amendment to, interpretation or announcement (whether or not written) by the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code Company or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administratorits Affiliates relating to, or against any fiduciary of change in employee participation or coverage under, any Employee Plan with which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect to thereof for the operation thereoffiscal year ending December 31, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding2010.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each None of the Company’s employees Acquired Corporations is terminable by the Company at will. The Company is not a party to, nor or is currently negotiating in connection with entering to enter into, any collective bargaining agreement or other Contract with Collective Bargaining Agreement and no employees of any of the Acquired Corporations are represented by a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting with respect to represent or, to the knowledge of the Company, seeking to represent any employees of the Companytheir employment with such Acquired Corporation. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material labor dispute work slowdowns, picketing or any other union organizing activity, or any threat thereof, in each case, involving by any employees of the Company’s employeesany Acquired Corporations with respect to their employment with such Acquired Corporations. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been are no material Legal Proceeding unfair labor practice complaints pending or, to the knowledge of the Company, threatened in writing relating to against any of the employment Acquired Corporations before the National Labor Relations Board or engagement any other Governmental Body. The consent or consultation of, or the rendering of formal advice by, any Company Associate. Since January 1labor or trade union, 2019, works council or other employee representative body is not required for the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment enter into this Agreement or to consummate any of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effectthe transactions contemplated hereby.
(cb) Section 3.16(c3.16(b) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of each material Employee Plan as of the date of this Agreement (other than any at-will employment agreements or offer letters that do not provide for severance, transaction or retention bonuses, change in control payments or other contractual obligations for non-officer employees of the Acquired Corporations and equity grant notices, and related documentation under a Company Equity Plan, with respect to employees of the Acquired Corporations). The To the extent applicable, the Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevantof: (i) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the most recent determination letter IRS or opinion letter received from the IRS; United States Department of Labor, (iii) for the three most recent plan yearsrecently filed annual return/report (Form 5500) and accompanying schedules and attachments thereto, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recently prepared actuarial report and financial statements and (v) the most recent prospectus or summary plan descriptions and any material modifications thereto; .
(vc) The Company has provided to Parent a schedule that sets forth, for each employee of the Acquired Corporations, his or her position ID, title, annual base salary, most recent nondiscrimination tests required annual bonus received and current annual bonus opportunity. Not later than ten days after the date hereof, the Company will have provided or will provide Parent with a schedule that sets forth the information specified in the immediately preceding sentence and each such employee’s hire date, location, whether full- or part-time and whether active or on leave. As of the date of this Agreement, no Key Employee indicated to be performed under any of the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee PlanAcquired Corporations’ directors or executive officers that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement or otherwise within one year after the Closing Date.
(d) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time relevant time, would have been considered a single employer with the Company under the Code or ERISA has ever sponsored, maintained, administered, contributed to, or has been required to contribute to or has or is reasonably expected to have any direct or indirect liability with respect to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Employee Plan has timely adopted all currently effective amendments to the Code and there are no existing circumstances or any events that have occurred that would reasonably be expected to affect adversely the qualified status of any such Employee Plan. Each trust created under any such Employee Plan is exempt from Tax under Section 501(a) of the Code and has been so exempt since its creation. Each of the Employee Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has events have occurred or is reasonably expected to occur with respect to any Employee PlanPlan that could result in payment or assessment by or against any Acquired Corporation of any material excise Tax under ERISA or the Code. The Acquired Corporations are not and could not reasonably be expected to be subject to either a material liability pursuant to Section 502 of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at ), none of the participant’s sole expense, neither the Company Acquired Corporations nor any Employee Plan has any present or future obligation to provide post-employment or post-retirement welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of any Acquired Corporation pursuant to any Company AssociateEmployee Plan.
(g) Since January 1Except as provided in Section 2.8, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to entitle any current or former employee, director, officer, independent contractor or director other service provider of any of the Company Acquired Corporations to any severance pay, bonus, retention, unemployment compensation or any other payment or benefit, (ii) enhance any benefits or accelerate the time of payment or vesting or trigger any payment, or increase the amount of compensation or benefits due to any such employee, director, officer, independent contractor, (iii) directly or indirectly cause any Acquired Corporation to transfer or set aside any material assets to fund any benefits under any Employee Plan, Plan or (iv) limit or restrict the right of any of the Acquired Corporations or, after Closing, Parent, to modifymerge, amend or terminate any Employee Plan Plan. There is no contract, plan or arrangement (except written or otherwise) covering any limitations imposed by applicable Legal Requirementscurrent or former employee, if any).
(k) The consummation of the Transactions (including in combination with director, officer, independent contractor or other events service provider that, individually or circumstances) will not result in collectively, could give rise to the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under due to the application of Section 280G of the Code.
(lh) With respect to any Each Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A or 457A of the Code has been timely amended (if applicable) to comply and has been operated in material compliance with, and the Acquired Corporations have materially complied in practice and operation with, all applicable requirements of Sections 409A and 457A of the Code. None of the Acquired Corporations has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, director, officer or independent contractor for any Tax incurred by such Person, including under Section 409A, 457A or 4999 of the Code.
(i) There is no Legal Proceeding material action, suit, investigation, audit, proceeding or claim (or any basis therefore) (other than routine claims for benefits in the ordinary coursebenefits) are pendingpending against or involving, or, to the knowledge of the Company’s knowledge, threatened against or involving any Employee PlanPlan before any arbitrator or any Governmental Body, including the assets IRS or the Department of Labor. The Acquired Corporations are, and have been since January 1, 2019, in material compliance with all applicable Legal Requirements with respect to labor relations, employment and employment practices, including those relating to labor management relations, wages, hours, overtime, employee classification, discrimination, sexual harassment, civil rights, affirmative action, work authorization, immigration, safety and health, information privacy and security, workers compensation, continuation coverage under group health plans, wage payment and the payment and withholding of Taxes. Since January 1, 2019, (i) no allegations of sexual harassment have been made against any of the trusts under such plans Acquired Corporations or the plan sponsor or administrator, or against any fiduciary of any Key Employee Plan with respect to the operation thereof, and (ii) neither the Acquired Corporations nor any Key Employee has entered into any written settlement agreement related to allegations of sexual harassment by any such Person.
(j) The Acquired Corporations are, and have been since January 1, 2019, in material compliance with the Worker Adjustment and Retraining Notification Act and any comparable foreign, state or local law (“WARN”) and have no facts material outstanding liabilities or circumstances exist other material outstanding obligations thereunder. None of the Acquired Corporations has taken any action that could would reasonably be expected to give rise cause Parent or any of its Affiliates to have any material liability or other material obligation following the Closing Date under WARN.
(k) Each Employee Plan that covers employees, directors, officers or independent contractors that are not located primarily within the United States (1) has been maintained in material compliance with its terms and applicable Legal Requirements, (2) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (3) if required, to any such Legal Proceedingextent, to be funded, book-reserved or secured by an insurance policy, is funded, book-reserved or secured by an insurance policy, as applicable, in accordance with applicable requirements and, if applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the CompanyAcquired Corporation’s employees is terminable by the Company applicable Acquired Corporation at will. The .
(b) Except as set forth in Part 3.15(b) of the Company Disclosure Schedule, none of the Acquired Corporations is not a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Corporations. Since January 1, 20192011, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting any of the Company’s Acquired Corporations or any of their employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similar activity or dispute.
(b. Except as set forth in Part 3.15(b) Since of the Company Disclosure Schedule, since January 1, 20192011, there has been no material Legal Proceeding or grievance pending or, to the knowledge of the Company, threatened in writing relating to the employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 20192011, the Company has complied in all respects with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours and other terms and conditions of wages employment (including the classification and hours compensation of workemployees for purposes of the Fair Labor Standards Act and cognate state laws) and other Legal Requirements in respect of any reduction in force, leaves of absenceincluding notice, plant closing notificationinformation and consultation requirements, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any the lack of compliance with which has not had and would not reasonably be expected to result in have a Material Adverse EffectEffect on the Acquired Corporations.
(c) Section 3.16(cPart 3.15(c) of the Company Disclosure Schedule sets forth a true and complete and accurate list of each the material Employee PlanPlans (other than any employment, termination or severance agreement for non-officer employees of the Company and its Subsidiaries and equity grant notices, and related documentation, with respect to employees of the Company and its Subsidiaries). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee PlanPlan true, accurate correct and complete copies of the following, as relevantof: (i) all plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (“DOL”), (iii) the most recent determination letter or opinion letter received from annual actuarial valuation, if any, and the IRS; (iii) for the three most recent plan years, annual report (A) the annual actuarial or other valuation reports, (B) the IRS Form Series 5500 and all schedules thereto and (C) audited financial statements; statements attached thereto), (iv) the most recent summary plan descriptions and any material modifications thereto; , (v) the most recent nondiscrimination tests required to be performed under the Code; Code (including 401(k) and 401(m) tests) for each Employee Plan, and (vi) all material correspondence to or from the IRS, the DOL, or any material non-routine communications with any other Governmental Body regarding any Employee Plansince January 1, 2011.
(d) Neither None of the Company Acquired Corporations nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with an Acquired Corporation under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within None of the meaning of Acquired Corporations is or reasonably could be subject to either a material liability pursuant to Section 406 502 of ERISA and or a Tax imposed pursuant to Section 4975 or 4976 of the codeCode. For the last six (6) has occurred years, the Acquired Corporations have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the Company, there is reasonably expected no default or violation by any other party to, any Employee Plan. There do not exist any pending and served or, to occur the knowledge of the Company, pending and not served or threatened claims (other than routine undisputed claims for benefits), Legal Proceeding with respect to any Employee PlanPlan other than Legal Proceeding that would not reasonably be expected to have a Material Adverse Effect.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company Acquired Corporations nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Acquired Corporations pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1, 2019, all individuals who perform or have performed services for Except as set forth in Part 3.15(g) of the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employeesDisclosure Schedule, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions transactions contemplated by this Agreement (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to entitle any current or former employee, director, officer, independent contractor or director other service provider of the Company Acquired Corporations to severance pay, unemployment compensation or any other payment, in each case, in excess of $200,000 (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor, (iii) directly or indirectly cause the Acquired Corporations to transfer or set aside any material assets to fund any benefits under any Employee Plan, (iv) otherwise give rise to any material liability under any Employee Plan or (v) limit or restrict the right to modifyamend, amend terminate or terminate transfer any material assets of any Employee Plan on or following the Effective Time.
(except h) Except as set forth in Part 3.15(h) of the Company Disclosure Schedule, no material Employee Plan is maintained primarily for the benefit of employees or other service providers who are primarily located outside of the United States (other than any limitations imposed by applicable Legal Requirementsemployment, if anytermination or severance agreement for non-officer employees of the Company or the Acquired Corporations, government mandated benefits, including consultation rights or notices, and equity grant notices, and related documentation, with respect to employees of the Company and the Acquired Corporations).
(ki) The consummation of the Transactions (including in combination with Each Employee Plan or other events or circumstances) will not result in the payment of any amount Contract that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of is subject to Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 409A of the Code or has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder, except for any amount instances of noncompliance that would not reasonably be deductible under expected to result in a material liability to the Acquired Corporations. The Acquired Corporations do not have an obligation to gross-up, indemnify or otherwise reimburse any current or former service provider to the Acquired Corporations for any tax incurred by such service provider pursuant to Section 280G 409A of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Samples: Merger Agreement (Websense Inc)
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. The Company is not a party to, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there There are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material labor dispute or any union organizing activity, or any threat thereof, in each case, involving any of the Company’s employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to strikes, lockouts, work stoppages or slowdowns involving the employment employees of the Company.
(b) The Company is not a party to, or engagement of bound by, any Company Associate. Since January 1collective bargaining agreement, 2019, the Company has complied Contract or other agreement or understanding with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, a labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effectunion or labor organization.
(c) Section 3.16(cThere is no unfair labor practice or labor arbitration proceeding pending or, to the knowledge of the Company, threatened against the Company.
(d) Part 3.17(d) of the Company Disclosure Schedule sets forth a true and complete and accurate list of each Employee Plan. The .
(e) With respect to each Employee Plan (to the extent applicable), the Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, accurate true and complete copies of the following, as relevantof: (i) all plan documents and embodying such Employee Plan (including all amendments thereto, and all related trust, insurance or other funding documents, and all amendments thereto) ; (ii) the most recent determination letter or opinion letter received from the IRSannual report (Form 5500 series and all schedules and financial statements attached thereto) filed with respect to such Employee Plan; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions description, and any all summaries of material modifications related thereto, distributed with respect to such Employee Plan; (iv) all related trust agreements or other funding instruments or insurance Contracts; and (v) the most recent nondiscrimination tests required determination, opinion or advisory letter, as applicable, issued by the IRS with respect to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No such Employee Plan that is a (i) a “multiple employer plan” as defined in intended to qualify pursuant to Section 413(c401(a) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(ef) Except as would not have a Material Adverse Effect, each Employee Plan has been maintained, funded, operated and administered in accordance with its terms and with all applicable Legal Requirements, including the applicable provisions of ERISA and the Code. Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained timely received or applied for a favorable determination letter (or is entitled to rely on a favorable opinion letterletter from the IRS, if applicable) as in either case, that has not been revoked and, to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 knowledge of the code) Company, no event or circumstance exists that has occurred adversely affected or is would reasonably be expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA adversely affect such qualification or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associateexemption.
(g) Since January 1As of the date of this Agreement, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and there is no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any Legal Proceeding pending or, to the knowledge of the Company, threatened inquiry with respect to (or audit from any Governmental Body concerning such classifications.
(hagainst the assets of) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary coursethat have been or are being handled through an administrative claims procedure, (ii) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could would reasonably be expected to give rise to any such Legal ProceedingProceeding and (iii) no Employee Plan is currently under investigation, audit or review, directly or indirectly, by any Governmental Body, and, to the knowledge of the Company, no such action is contemplated or under consideration by any Governmental Body.
(h) Except as set forth on Part 3.17(h) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to or has ever sponsored, maintained or contributed to (or been obligated to sponsor, maintain or contribute to) or has any direct, indirect or contingent liability with respect to: (i) a “multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of ERISA or 414(f) of the Code; (ii) a multiple employer plan within the meaning of Section 210, 4063 or 4064 of ERISA or Section 413(c) of the Code; (iii) an employee benefit plan that is subject to Section 302 of ERISA, Title IV of ERISA or Section 412 of the Code; (iv) a “multiple employer welfare arrangement,” as defined in Section 3(40) of ERISA; or (v) a self-funded (or self-insured) health plan.
(i) None of the Employee Plans provides post-employment medical or life insurance benefits to any current or former employee of the Company or any ERISA Affiliate (or to any other Person) after his or her retirement or other termination of employment or service, except to the extent required by applicable Legal Requirements or through the end of a de minimis period after termination of employment.
(j) Except as set forth in Part 3.17(j) of the Company Disclosure Schedule, (i) neither the execution and delivery of this Agreement or other related agreements, nor the consummation of the Offer, the Merger and the other Transactions will (either alone or in conjunction with any other event, such as termination of employment) give rise to any liability under any Employee Plan, including liability for severance pay, termination pay or withdrawal liability, or accelerate the time of payment or vesting of any benefits under any Employee Plan, and (ii) any amount that could be received (whether in cash or property or the vesting of property) as a result of the consummation of any of the Offer, the Merger and the other Transactions by any employee, officer, director or independent contractor of the Company or any of its Affiliates who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Employee Plan currently in effect would not be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(k) No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from the Company as a result of the imposition of any excise or additional Taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. .
(b) The Company is not a party to, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 20192018, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting the Company or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(bc) Since January 1, 20192017, there has been is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate, including relating to any Company Employee Agreement. Since January 1, 20192017, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(cd) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all material plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.recent
Appears in 1 contract
Samples: Merger Agreement (Synthorx, Inc.)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal RequirementsLaws, the employment of each of the Company’s Acquired Corporations’ employees is terminable by the Company applicable Acquired Corporation at will. The Company .
(b) As of the Agreement Date, no Acquired Corporation is not a party to, nor has any duty to bargain for, or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge Knowledge of the Company, seeking to represent any employees of the Companyany Acquired Corporation. Since January 1, 20192017, there has not been any strike, slowdown, work stoppage, interruption of work, lockout, material picketing, union organization attempts or labor dispute affecting any Acquired Corporation or any union organizing activity, or any threat thereof, in each case, involving any of the Company’s their respective employees. There is not now pending, and, to the knowledge Knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, interruption of work, lockout, material picketing or labor dispute or union organizing activity or any similar activity or dispute.
(bc) Since January 1, 20192017, there has been no material Legal Proceeding pending or, to the knowledge Knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 2019, the Company has complied with all applicable Legal Requirements related to employment, including employment practicesrelating to any Company Employee Agreement, payment of wages and hours of workhours, leaves leave of absence, plant closing notification, employment statute or regulation, privacy rightsright, labor dispute, workplace workers’ compensation policy or long-term disability policy, safety, retaliation, immigrationimmigration or discrimination matters involving any Company Associate, and discrimination mattersincluding charges of unfair labor practices or harassment complaints, except other than any lack of compliance which has not had and Legal Proceedings that would not reasonably be expected to result in have a Material Adverse Effect. Since January 1, 2017, the Company has complied in all material respects with all applicable Laws related to employment and labor, including applicable Laws relating to employment practices, wages, hours, retaliation, employment discrimination, harassment, immigration and other terms and conditions of employment and any reduction in force (including notice, information and consultation requirements).
(cd) The Company has made available to Purchaser an accurate and complete list, as of the Agreement Date, of each employee of any Acquired Corporation, including such employee’s (i) name; (ii) job title; (iii) date of hire; (iv) base salary or current rate of compensation; (v) legal residence and work location; (vi) employment status (i.e., active, disabled or on authorized leave and the reason therefor); (vii) whether full-time, part-time or per-diem; (viii) whether classified as exempt or non-exempt under the Fair Labor Standards Act; and (vi) accrued but unused vacation and other paid time off (the “Employee Census”).
(e) Section 3.16(c4.16(e) of the Company Disclosure Schedule Letter sets forth a an accurate and complete and accurate list list, as of the Agreement Date, of each material Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevantapplicable: (i) all plan documents and all amendments theretothereto (or, in the case of any such unwritten material Employee Plan, a written description thereof), and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.from
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the CompanyAcquired Corporation’s employees is terminable by the Company applicable Acquired Corporation at will. The Company .
(b) None of the Acquired Corporations is not a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Corporations. Since January 1, 2019For the past three years, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting any of the Company’s Acquired Corporations or any of their employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similar activity or dispute.
(b. Except as set forth in Part 2.16(b) Since January 1, 2019of the Company Disclosure Schedule, there has been is no material Legal Proceeding claim or grievance pending or, to the knowledge of the Company, threatened in writing relating to the any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 2019For the past three years, the Company has complied in all respects with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours and other terms and conditions of wages employment (including the classification and hours compensation of workemployees for purposes of the Fair Labor Standards Act and cognate state laws) and other Legal Requirements in respect of any reduction in force, leaves of absenceincluding notice, plant closing notificationinformation and consultation requirements, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any the lack of compliance with which has not had and would not reasonably be expected to result in have a Material Adverse EffectEffect on the Acquired Corporations.
(c) Section 3.16(cPart 2.16(c) of the Company Disclosure Schedule sets forth a true and complete and accurate list of each the material Employee PlanPlans (other than any employment, termination or severance agreement for non-officer employees of the Company and its Subsidiaries and equity grant notices, and related documentation, with respect to employees of the Company and its Subsidiaries). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee PlanPlan true, accurate correct and complete copies of the following, as relevantof: (i) all plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor (“DOL”), (iii) the most recent determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reportsvaluation, if any, and annual reports (B) the IRS Form Series 5500 and all schedules thereto and (C) audited financial statements; statements attached thereto), (iv) the most recent summary plan descriptions and any material modifications thereto; , (v) the most recent nondiscrimination tests required to be performed under the Code; Code (including 401(k) and 401(m) tests) for each Employee Plan, and (vi) all material correspondence to or from the IRS, the DOL, or any material non-routine communications with any other Governmental Body regarding any Employee Planfor the last three years.
(d) Neither None of the Company Acquired Corporations nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with an Acquired Corporation under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Employee Plan. Each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within None of the meaning of Acquired Corporations is or reasonably could be subject to either a material liability pursuant to Section 406 502 of ERISA and or a Tax imposed pursuant to Section 4975 or 4976 of the codeCode. For the last six (6) has occurred years, the Acquired Corporations have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the Company, there is reasonably expected to occur with respect to no default or violation by any other party to, any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company Acquired Corporations nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Acquired Corporations pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1There are no pending, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, overtly threatened inquiry claims (other than routine claims for benefits) by, on behalf of or against any Employee Plan or any trust related thereto which could reasonably be expected to result in any material liability to the Acquired Corporations and no audit from any or other proceeding by a Governmental Body concerning is pending, or to the knowledge of the Company, overtly threatened with respect to such classificationsplan or relating to the legal status or classification of an individual classified by the Company or any of its Subsidiaries as a non-employee (such as an independent contractor, a leased employee, a consultant or special consultant).
(h) The Company maintains no obligations to gross-up No Employee Plan is maintained primarily for the benefit of employees or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 other service providers who are primarily located outside of the CodeUnited States.
(i) Each “nonqualified deferred compensation plan” maintained by Except as set forth in Part 2.16(i) of the Company has been at all times in material documentary and operational compliance with Disclosure Schedule, the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions transactions contemplated by this Agreement (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to entitle any current or former employee, director, officer, independent contractor or director other service provider of the Company Acquired Corporations to severance pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor, (iii) directly or indirectly cause the Acquired Corporations to transfer or set aside any assets to fund any benefits under any Employee Plan, (iv) otherwise give rise to any material liability under any Employee Plan or (v) limit or restrict the right to modifyamend, amend terminate or terminate transfer any assets of any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any)on or following the Effective Time.
(kj) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount Each Employee Plan that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of is subject to Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 409A of the Code or has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder, except for any amount instances of noncompliance that would not reasonably be deductible under expected to result in a material liability to the Acquired Corporations. The Acquired Corporations do not have an obligation to gross-up, indemnify or otherwise reimburse any current or former service provider to the Acquired Corporations for any tax incurred by such service provider pursuant to Section 280G 409A of the Code.
(lk) With respect to any Employee Plan, (i) no Each Company Option was granted in material compliance with all applicable Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge Requirements and all of the Company, threatened against any Employee Plan, the assets of any terms and conditions of the trusts under such plans applicable Company Equity Plan pursuant to which it was issued and has a grant date which was approved by the Board of Directors of the Company or a committee thereof no later than the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceedinggrant date.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each Part 3.14(a) of the Company’s employees is terminable by the Company at will. The Company is not Disclosure Letter sets forth a party totrue, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any complete and correct list of its employees and there are no all labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of an Acquired Corporation, and no Acquired Corporation is a party to, or is bound by, any Collective Bargaining Agreement. Except as has not had, and would not reasonably be expected to have, individually or in the Company. Since January 1aggregate, 2019a Material Adverse Effect, since the Applicable Date: (i) there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, union grievance or any union organizing activity; (ii) there is not any pending or, or any threat thereof, in each case, involving any of to the Company’s employees. There is not now pendingknowledge, andthreat of any, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, union grievance or union organizing activity affecting an Acquired Corporation or any similar activity or dispute.
of its employees; (biii) Since January 1, 2019, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement any employment practices of any kind, including but not limited to those relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any current or former Company Associate. Since January 1, 2019, including charges or complaints of unfair labor practices or harassment complaints; (iv) the Company has Acquired Corporations have complied with all applicable Legal Requirements related to employment, including but not limited to employment practices, payment employment standards, employment of wages minors, employment discrimination, health and hours of work, leaves of absence, plant closing notification, privacy rightssafety, labor disputerelations, workplace safety, retaliationinsurance, immigrationpay equity, withholding, wages, hours and other terms and conditions of employment (including the classification and compensation of employees for purposes of the Fair Labor Standards Act and cognate state laws) and other Legal Requirements in respect of any reduction in force, including notice, information and consultation requirements; (v) no Acquired Corporation has received written notice from any Governmental Body responsible for the enforcement of labor or employment laws of the intent of any such Governmental Body to conduct an audit, investigation or inquiry of such Acquired Corporation that has not been completed, and, to the knowledge of the Company, no such audit, investigation or inquiry is in progress; (vi) each Acquired Corporation has filed all reports, information and notices required under applicable Legal Requirements regarding the hiring, hours, wages, occupational safety and health, employment, promotion, or termination of all employees; (vii) there is no misclassification of any individual that renders services to any Acquired Corporation who is classified as (1) an independent contractor or other non-employee status, (2) an exempt or non-exempt employee, or (3) an intern for all purposes, including taxation and Tax reporting, Fair Labor Standards Act purposes and applicable Legal Requirements governing the payment of wages; (viii) the Acquired Corporations have paid or accrued all wages and compensation due to all employees, including all overtime pay, vacations or vacation pay, holidays or holiday pay, sick days or sick pay, and discrimination mattersbonuses and have maintained records for all employees and personnel records in compliance with applicable Legal Requirements; (ix) there have been no outstanding penalties pursuant to worker’s compensation statutes, except any lack or charges regarding same; (x) the Acquired Corporations have complied in all respects with the requirements of compliance which the Immigration Reform and Control Act of 1986 and Section 274(A) of the Immigration and Nationality Act with respect to all employees, and, to the Company’s knowledge, all employees who have performed services for the Acquired Corporations in the United States have been legally authorized to work in the United States; and (xi) there has not had been any “mass layoff,” “plant closing” or similar event as defined by the Worker Adjustment and would not reasonably be expected to result in a Material Adverse EffectRetraining Notification Act, 29 U.S.C. §§ 2101 et seq. and any similar state or local law affecting any of the Acquired Corporations or any of their current or former Company Associates.
(cb) Section 3.16(cPart 3.14(b) of the Company Disclosure Schedule Letter sets forth a an accurate and complete and accurate list of each the material Employee PlanPlans. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement Agreement, with respect to each material Employee Plan, accurate and complete copies of the following, (as relevantapplicable) of: (i) all the plan documents document and all any amendments thereto, and all thereto (or a written summary if a plan document is not available); (ii) any related trust, insurance trust or other funding documents, and all amendments thereto; (iiiii) the most recent IRS determination letter or opinion letter received from with respect to the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statementsEmployee Plan’s tax-qualified status; (iv) the most recent summary plan descriptions annual actuarial valuation, and any material modifications theretothe most recent Form 5500; (v) the most recent nondiscrimination tests required summary plan description and any material modifications to be performed under the Codesuch summary plan description; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Planeach insurance or group annuity contract, trust agreement, or other funding vehicle.
(dc) Neither the Company nor any of its ERISA Affiliates has at any time sponsoredNo Acquired Corporation maintains, maintained, contributed contributes to, or been required to contribute tosponsors, or had has any liability in respect ofliability, contingent or otherwise, regarding (including on behalf of an ERISA Affiliate) any (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” (“Multiemployer Plan”), each as defined in Section 4001 of ERISA. No Employee Plan is a , (iii) a “multiple employer plan” as defined in plan within the meaning of Section 413(c) of the Code, Code or (iiiii) a “multiple employer welfare arrangement” within the meaning of arrangement as defined in Section 3(40) of ERISA. With respect to each Employee Plan that is subject to Title IV or Section 302 of ERISA or Sections 412 or 4971 of the Code and that is a “single employer” defined benefit plan, the Pension Benefit Guaranty Corporation has not instituted proceedings to terminate any such Employee Plan. With respect to each Employee Plan that is a Multiemployer Plan, neither an Acquired Corporation nor any of their ERISA Affiliates has received any notification that any such Employee Plan is in reorganization, has been terminated, is insolvent, and, to the Company’s knowledge, as of the date of this Agreement no such Employee Plan is expected to be in reorganization, to be insolvent, or to be terminated. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, with respect to each Employee Plan that is a “single employer” defined benefit plan or a Multiemployer Plan, the Company has timely made all contributions due or required to be made, either by law or contract.
(ed) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the CodeCode and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that could reasonably be expected to cause the loss of any such qualification status of any such Employee Plan. Each Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each of the Employee Plan Plans is now and has been operatedestablished, maintained, funded, administered and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(je) The consummation of the Transactions (including in combination with other events or circumstances) will not not: (i) result in entitle any current or former Company Associate or independent contractor of any of the Acquired Corporations to any compensation or benefits; (ii) accelerate the time of payment or benefit becoming vesting, or increase the amount of, compensation or benefits due to any such Company Associate or independent contractor of any of the Acquired Corporations; (iii) cause the Company to transfer or set aside any assets to fund any benefits under any Employee Plan, (ii) increase any amount of compensation ; or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit or restrict the right to modifyamend, amend terminate or terminate transfer the assets of any Employee Plan on or following the Effective Time. The Acquired Corporations are not a party to any Contract that would require, nor do the Acquired Corporations have any obligation (except current or contingent), to compensate any limitations imposed by applicable Legal Requirementsindividual for excise Taxes paid or due pursuant to Sections 409A, if any).
(k) The consummation 457A or 4999 of the Transactions Code. No payment or deemed payment by the Acquired Corporations will arise or be made as a result (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually alone or in combination with any other payment event) of the execution, delivery and performance of this Agreement by the Company, or benefitthe consummation by the Company of the Transactions, constitute an “excess parachute payment” within the meaning of that would not be deductible pursuant to Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that except as would not be deductible under Section 280G of the Codehave a Material Adverse Effect.
(lf) With respect Except as has not had, and would not reasonably be expected to any Employee Planhave, individually or in the aggregate, a Material Adverse Effect, (i) there are no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, pending or, to the knowledge of the Company, threatened or anticipated claims (other than routine claims for benefits) by, on behalf of or against any Employee Plan, the assets of Plan or any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereoftrust related thereto, and (ii) no facts audit or circumstances exist that could other proceeding by a Governmental Body is pending or, to the knowledge of the Company, threatened or anticipated with respect to any Employee Plan.
(g) None of the Acquired Corporations is party to a settlement agreement with any current or former Company Associate or current or former independent contractor of any Acquired Corporation resolving allegations of sexual harassment or sexual misconduct made against any current officer, director or other employee of the Acquired Corporations at or above the vice president or equivalent level of any Acquired Corporation since the Applicable Date. There are no, and since the Applicable Date, there have not been any Legal Proceedings pending or, to the Company’s knowledge, threatened, against any Acquired Corporation, in each case, involving material allegations of sexual harassment or sexual misconduct by any current officer, director or other employee of the Acquired Corporations at or above the vice president or equivalent level of any Acquired Corporation.
(h) Except as has not had, and would not reasonably be expected to give rise have, individually or in the aggregate, a Material Adverse Effect, with respect to each benefit arrangement that is maintained or administered by a Governmental Body in which any Company Associate participates in, or receives benefits from and to which the Company’s only obligation is to make statutorily required contributions (each a “Governmental Plan”), all contributions due or required to be made by the applicable Acquired Corporation have been timely made, and no liability (other than liabilities with respect to ongoing, required contributions), contingent or otherwise, exists with respect to any such Legal ProceedingGovernmental Plan.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the The employment of each of the Company’s or its Subsidiaries’ employees is terminable by the Company at will. The .
(b) Neither the Company nor any of its Subsidiaries is not a party to, nor is currently negotiating in connection with entering into, to any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Companyemployees. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material labor dispute or any union organizing activity, or any threat thereof, in each case, involving by any employees of the Company’s employees. There is not now pending, and, Company or its Subsidiaries with respect to their employment with the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute Company or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associateits Subsidiaries. Since January 1, 2019, the Company has complied been in material compliance with all applicable Legal Requirements related to employment, including employment and employment practices, payment including terms and conditions of employment, wages and hours of workhours, leaves of absencediscrimination, plant closing notificationemployee and independent contractor classification, privacy rightsworkers’ compensation, labor disputefamily and medical leave, workplace safety, retaliation, immigrationthe immigration and occupational safety and health requirements, and discrimination mattersno claims or Legal Proceedings are pending or threatened with respect to the foregoing. To the knowledge of the Company, except no allegations of sexual harassment or misconduct have been made against any lack current or former employee or other service provider of compliance which has not had and would not reasonably be expected the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries have entered into any settlement agreement related to result in a Material Adverse Effectallegations of sexual harassment or misconduct by any current or former employee or other service provider.
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of each the material Employee PlanPlans. The To the extent applicable, the Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, Plan accurate and complete copies of the following, as relevantof: (i) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments theretoin the case of unwritten material Employee Plans, written descriptions thereof; (ii) the most recent determination letter letters, rulings, opinion letters, information letters or opinion letter received from advisory opinions issued by the IRSIRS or the United States Department of Labor (“DOL”); (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (iv) the Form 5500 filed with the DOL for the last two (2) plan years; (v) the most recent nondiscrimination tests required to be performed under the Coderecently prepared financial statements or actuarial reports; and (vi) any other material non-routine communications correspondence with any a Governmental Body regarding any Employee PlanBody.
(d) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Company under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or had otherwise incurred any liability in with respect ofto, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) a plan subject to Title IV or Section 302 of ERISA, ERISA or Code Section 412 or Section 302 of ERISA4971, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 3(40) 4063 of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect the qualified status of any such Employee Plan. Each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. There are no pending or threatened claims (other than routine claims for benefits in the ordinary course of business consistent with past practice) or Legal Proceedings, and, to the knowledge of the Company, no set of circumstances exists that may reasonably give rise to a claim or Legal Proceeding, against the Employee Plans, any fiduciaries thereof or the assets of any related trusts. No non-exempt Employee Plan is under audit or the subject of an investigation by the IRS, the DOL, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Body, nor is any such audit or investigation pending or, to the knowledge of the Company, threatened. The Company is not and could not reasonably be expected to be subject to either a material liability pursuant to Section 502 of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code. Each Employee Plan that is in any part a “prohibited transactionnonqualified deferred compensation plan” (within subject to Section 409A of the meaning Code complies both in form and operation with the requirements of Section 406 of ERISA and Section 4975 409A of the code) has occurred Code in all material respects. All contributions required to be made to any Employee Plan by applicable Legal Requirements or is reasonably expected to occur otherwise, and all premiums due or payable with respect to insurance policies funding any Employee Plan, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the financial statements of the Company in accordance with GAAP.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at ), none of the participant’s sole expenseCompany, neither the Company nor any of its Subsidiaries or any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer, director or other service provider of the Company or its Subsidiaries pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including whether alone or in combination with other events or circumstances) will not not, directly or indirectly (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to entitle any current or former employee, director, officer, independent contractor or director other service provider of the Company or its Subsidiaries to severance pay, unemployment compensation or any other payment or benefit, (ii) accelerate the time of payment, vesting or exercisability, or materially increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or other service provider, (iii) cause the Company or its Subsidiaries to transfer or set aside any assets to fund any compensation or benefits under any Employee Plan, or (iv) limit result in any limitation on the right of the Company or its Subsidiaries to modifyamend, amend merge, terminate or terminate receive a reversion of assets from any Employee Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (except any limitations imposed whether in cash, in property, or in the form of benefits) by applicable Legal Requirements, if any).
(k) The consummation of the Company or its Subsidiaries in connection with the Transactions (including whether alone or in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute be an “excess parachute payment” within the meaning of Section 280G of the Code, result in .
(h) No Employee Plan provides for the payment gross-up or reimbursement of an excise tax by any Person Taxes under Section 4999 of the Code or any amount that would not be deductible under Section 280G 409A of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceedingotherwise.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Part 3.17(a) of the Company Disclosure Schedule identifies each material Company Employee Agreement and each material Employee Plan. Subject to applicable Legal RequirementsLaws, the employment of each of the Company’s employees is terminable by the Company at will. .
(b) The Company is not a party toto or bound by, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees Labor Agreement and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 20192022, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting the Company or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(bc) Since January 1, 20192022, there has not been and there is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate, or relating to any Company Employee Agreement or Employee Plan. Since January 1, 20192022, the Company has complied with complied, and is in compliance with, all applicable Legal Requirements Laws related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, (including the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Laws (the “WARN Act”)), privacy rights, labor dispute, workplace safety, harassment, retaliation, immigration, and discrimination matters, except any lack of compliance which which, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(cd) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all material plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective favorable determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statements5500; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with material correspondence from any Governmental Body regarding any Employee Plansince January 1, 2022.
(de) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time relevant time, would have been considered a single employer with the Company under the Code or ERISA has sponsored, maintained, contributed to, or been required to contribute toto a plan subject to Section 302 or Title IV of ERISA or Code Section 412, or had including any liability in respect of, (i) an single employer “employee pension defined benefit plan” (as defined in Section 3(23(35) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 3(37) or 4001 of ERISA. No Employee Plan is The Company does not have any current or contingent liability or obligation on account of at any time being considered a (i) a “multiple single employer plan” as defined in with any other Person under Section 413(c) 414 of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(ef) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a current favorable determination letter (or opinion letter, if applicable) from the IRS as to its qualified status under the Code, and nothing has occurred that would reasonably be expected to adversely affect the qualification of such Employee Plan. Each Except as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, each of the Employee Plan Plans is now and has been operatedestablished, maintained, funded, administered, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirementslegal requirements, including but not limited to ERISA and the Code, and nothing has occurred and no condition exists with respect to any Employee Plan that would reasonably be expected to result in a material Tax, penalty or other liability or obligation of the Company, including with respect to Sections 4980B, 4980D or 4980H of the Code. No non-exempt There has been no “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA and Section 4975 no breach of the codefiduciary duty (as determined under ERISA) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(fg) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expenseLaw), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment or retiree welfare benefits to or make any payment to, or with respect to to, any Company Associate.
(g) Since January 1present or former employee, 2019officer, all individuals who perform director or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge other service provider of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including either alone or in combination with other events or circumstances) will not (i) result in directly or indirectly cause the Company to transfer or set aside any payment assets to fund any compensation or benefit becoming due to any Company Associate or benefits under any Employee Plan, (ii) entitle any Company Associate to any compensation increase, severance pay or any other material compensatory payment or benefit (whether in the form of cash, property or the vesting of property), (iii) accelerate the time of payment or vesting or increase any the amount of compensation or benefits otherwise payable due to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee PlanAssociate, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with “disqualified individual” receiving any other payment or benefit, constitute an “excess parachute payment” within the meaning of (each such term as defined in Section 280G of the Code), result in (v) limit or restrict the right to amend, terminate or transfer the assets of any Employee Plan on or following the Effective Time or (vi) otherwise give rise to any material liability under any Employee Plan.
(i) The Company is not a party to, or otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up, indemnification, reimbursement of or other payment of an excise tax for any Taxes, including those imposed by any Person under Section Sections 409A or 4999 of the Code (or any amount that would not be deductible under Section 280G corresponding provisions of the Codestate, local or non-U.S. Law relating to Tax).
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Samples: Merger Agreement (RayzeBio, Inc.)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Corporation's employees is terminable by the Company applicable Acquired Corporation at will. The .
(b) Each Contract of employment or for services providing for potential aggregate payments by the applicable Acquired Corporation reasonably expected to exceed $200,000 annually with any employee of any Acquired Corporation who provides services outside the United States (each a “Foreign Employee”) can be terminated by three months' notice or less at any time without giving rise to any claim for damages, severance pay or compensation (other than as required by applicable Legal Requirements, including a statutory redundancy payment applicable by virtue of any Legal Requirement or compensation for unfair dismissal applicable by virtue of any Legal Requirement or any other remedy under any Legal Requirement).
(c) To the knowledge of the Company, no Company Associate that is not listed on Part 3.16(c) of the Disclosure Schedule has delivered the Company a written notice of such Company Associate's intention to terminate his or her employment prior to the Closing Date for any reason.
(d) None of the Acquired Corporations is a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council works' council, or similar employee representative body representing any of its employees and there are no labor organizations or works councils, or similar employee representative body representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of any of the CompanyAcquired Corporations. Since January 1December 31, 20192009, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting any of the Company’s employeesAcquired Corporations or any of current or former Company Associate. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019. To the knowledge of the Company, there has been are no unfair labor practice charges or complaints against any of the Acquired Corporations pending before the National, Labor Relations Board or any foreign equivalent. There is no material Legal Proceeding claim, complaint, charge or grievance pending and served to an Acquired Company or, to the knowledge of the Company, threatened pending or threatened, in writing relating each case under any Legal Requirements related to the employment or engagement termination of employment, including any Company Employee Agreement, wages and hours, bonus, commission and other compensation plans, employment withholding, record keeping, child labor, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers' compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any current or former Company Associate, including charges of unfair labor practices or harassment complaints. Since January April 1, 20192011, the Company has complied in all material respects with its own policies, plans, practices, work rules, and all applicable Legal Requirements related to employment, including termination of employment, employment practices, payment of wages wages, hours, meal and hours of workrest period, leaves of absencebonus, plant closing notificationcommission and other compensation plans, privacy rightsTax withholdings, discrimination and harassment, fair employment practices, equal employment opportunity, workers' compensation, collective bargaining (including any applicable foreign national collective bargaining agreement), labor disputepractices immigration status, workplace safetycontractual obligations, retaliationoccupational safety and health and other terms and conditions of employment (including the classification and compensation of employees for purposes of the Fair Labor Standards Act of 1938, immigrationas amended (and the rules and regulations promulgated thereunder), and discrimination matterscognate state Legal Requirements) and other Legal Requirements in respect of any reduction in force, including notice, information and consultation requirements, except any where the lack of compliance which with does not constitute a Company Material Adverse Effect. In addition, each Acquired Corporation has complied in all material respects with its own policies, plans, practices, work rules and internal regulations, and all applicable Legal Requirements, related to such Acquired Corporation's supply chains, human trafficking, and whistleblower protections, except where the lack of compliance with does not had constitute a Company Material Adverse Effect.
(e) With respect to current and former Company Associates: except with respect to instances or noncompliance that would not reasonably be expected to result in a Material Adverse Effectmaterial liability to the Acquired Corporations, the Acquired Corporations (i) have withheld and reported all amounts required by applicable Legal Requirements or by agreement to be withheld and reported with respect to wages, salaries and other payments, (ii) are not liable for any arrears of wages, fees, severance pay or any Taxes or any penalty for failure to comply with any of the foregoing, and (iii) are not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Government Body, with respect to unemployment compensation benefits, social security, social insurance or other benefits or obligations for current and former employees (other than routine payments to be made in the ordinary course of business consistent with past practices).
(cf) Section 3.16(cPart 3.16(f) of the Company Disclosure Schedule sets forth a true, correct and complete and accurate list of each the material Company Employee PlanPlans (other than any employment, termination or severance agreement for non-officer employees of any Acquired Company and equity grant notices, and related documentation, with respect to employees of any Acquired Corporation). The Company has either delivered or made available Made Available to Parent or Parent’s Representatives prior to the execution of this Agreement , with respect to each material Company Employee Plan, accurate true, correct and complete copies of the following, as relevantof: (i) all plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; in the case of unwritten material Company Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the United States Internal Revenue Service or the United States Department of Labor, (iii) the most recent determination letter or opinion letter received from annual actuarial valuation, if any, and the IRS; (iii) for the three most recent plan years, annual report (A) the annual actuarial or other valuation reports, (B) the IRS Form Series 5500 and all schedules thereto and (C) audited financial statements; statements attached thereto), (iv) the most recent summary plan descriptions and any material modifications thereto; , (v) the most recent nondiscrimination tests required to be performed under the Code; Code (including 401(k) and 401(m) tests) for each Company Employee Plan, (vi) insurance policies providing benefits under Company Employee Plans, and (vii) all material correspondence to or from the United States Internal Revenue Service, the United States Department of Labor, or any material non-routine communications with any other Governmental Body regarding any Employee Plansince April 1, 2011.
(dg) Neither None of the Company Acquired Corporations nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with an Acquired Corporation under the Code or ERISA has ever maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, Code ERISA or Section 412 or Section 302 of ERISAthe Code, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(eh) Each of the Company Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, each such Company Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Company Employee Plan or result in material liability to the Acquired Corporations. Each of the Company Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable U.S. Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur Since August 1, 2008, with respect to each Company Associate the Acquired Corporations have complied in all material respects with the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (and the rules and regulations promulgated thereunder),the Health Insurance Portability and Accountability Act of 1996, as amended (and the rules and regulations promulgated thereunder), and the Family and Medical Leave Act of 1993, as amended (and the rules and regulations promulgated thereunder). None of the Acquired Corporations is or reasonably could be subject to either a liability pursuant to Section 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code. For the last six years, the Acquired Corporations have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the Company, there is no default or violation by any other party to, any Company Employee Plan.
(fi) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company Acquired Corporations nor any Company Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Acquired Corporations pursuant to any Company Associate.
(g) Since January 1, 2019, all individuals who perform retiree medical benefit plan or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation other retiree welfare plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Contemplated Transactions (including in combination with other events or circumstances) will shall not (i) result entitle any current or former Company Associate to severance pay, unemployment compensation or any other payment, in any each case, in excess of $100,000 per Company Associate, (ii) accelerate the time of payment or benefit becoming vesting, or increase the amount of, compensation or benefits due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee PlanAssociate, (iii) result in directly or indirectly cause the acceleration of the time of payment, funding Acquired Corporations to transfer or vesting of set aside any material assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Company Employee Plan, (iv) otherwise give rise to any material liability under any Company Employee Plan (v) limit or restrict the right to modifyamend, amend terminate or terminate transfer any material assets of any Company Employee Plan on or following the Effective Time or (except any limitations imposed by applicable Legal Requirements, if any).
(kvi) The consummation of the Transactions (including in combination with other events or circumstances) will not result in give rise to the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under pursuant to the terms of Section 280G of the Code.
(lk) With respect to any Employee PlanExcept as set forth in Part 3.16(k) of the Disclosure Schedule, (i) no Legal Proceeding material Foreign Plan is maintained (other than routine claims any employment, termination or severance agreement for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets non-officer employees of any of the trusts under such plans Acquired Corporation, government mandated benefits, including consultation rights or the plan sponsor or administratornotices, or against any fiduciary of any Employee Plan and equity grant notices, and related documentation, with respect to employees of any Acquired Corporation). Each Foreign Plan has been operated and maintained in all material respects in compliance with its terms and with applicable Legal Requirements (including any special provisions relating to qualified plans where such Foreign Plan was intended to so qualify) and has been maintained in good standing with the operation thereofapplicable regulatory authorities, including obtaining from the Governmental Body having jurisdiction over such Foreign Plan any required documentation that such Foreign Plan is in compliance with the Legal Requirements of the relevant jurisdiction if such determination is required to give effect to such Foreign Plan. According to the actuarial assumptions and valuations most recently used for the purpose of funding each Foreign Plan (iior, if the same has no such assumptions and valuations or is unfunded or is not subject to statutory funding requirements, according to the actuarial assumptions and valuations prescribed by applicable local accounting standards and principles), as of December 31, 2012, the total amount or value of the funds available under such Foreign Plan to pay benefits accrued thereunder or segregated in respect of such accrued benefits, together with any reserve or accrual with respect thereto, exceeded the present value of all benefits (actual or contingent) no facts accrued as of such date of all participants and past participants therein in respect of which the Acquired Corporations have or circumstances exist would have after the Effective Time any obligation.
(l) Each Company Employee Plan that could is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code, except for any instances of noncompliance that would not reasonably be expected to give rise result in a material liability to the Acquired Corporations.
(m) The Acquired Corporations do not have an obligation to gross-up, indemnify or otherwise reimburse any current or former service provider to the Acquired Corporations for any Tax incurred by such Legal Proceedingservice provider.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. .
(b) The Company is not a party to, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1December 31, 20192018, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting the Company or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(bc) Since January 1December 31, 20192018, there has been is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate, including relating to any Employee Plan. Since January 1, 20192017, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effect.
(cd) Section 3.16(cPart 3.16(d) of the Company Disclosure Schedule sets forth a complete and accurate list of each material Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee PlanPlan (excluding for this purpose all employment agreements, offer letters, and consulting agreements that do not materially deviate from the Company’s standard form) accurate and complete copies of the following, as relevant: (i) all material plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statementsthereto; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(de) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, maintained, contributed to, or would have been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is considered a (i) a “multiple single employer plan” as defined in Section 413(c) of with the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status Company under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to applicable Legal RequirementsExcept as may be disclosed in Disclosure Schedule 7.11(a):
(1) To the best of the knowledge, information and belief of the Company and Sellers, the Company is and has been in material compliance with all applicable laws respecting employment and employment practices, terms and conditions of each of employment and wages and hours, including, without limitation, any such laws respecting employment discrimination and occupational safety and health requirements, and the Company’s employees is terminable by the Company at will. The Company is not a party to, nor engaged in any unfair labor practices;
(2) there is currently negotiating in connection with entering into, any collective bargaining agreement no material unfair labor practice complaint against the Company pending or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material labor dispute or any union organizing activity, or any threat thereof, in each case, involving any of the Company’s employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.threatened;
(b3) Since January 1, 2019, there has been is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 2019, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safetystrike, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effect.
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered slowdown or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance or other funding documents, and all amendments thereto; (ii) the most recent determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed tostoppage actually pending, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against or directly relating to the Company; and
(4) the Company has not experienced any Employee Planmaterial work stoppage or other material labor difficulty during the past year.
(b) Except as described and attached to Disclosure Schedule 7.11(b), the assets of Company is not a party to any of agreement for the trusts under such plans employment, retention or the plan sponsor or administratorengagement, or against any fiduciary of any Employee Plan with respect to the operation thereofseverance, of any officer, employee, agent or consultant.
(c) Except as set forth in Disclosure Schedule 7.11(c), the Company does not maintain, contribute to or participate in any Benefit Plan, whether as sponsor, adopting employer or otherwise.
(d) All Benefit Plans have in all material respects been operated, administered and maintained in accordance with the terms thereof and in compliance with the requirements of all applicable laws.
(e) All contributions to, and payments from, the Benefit Plans, which may have been required to be made in accordance with the Benefit Plans have been timely made. All such contributions to the Benefit Plans, and all payments under the Benefit Plans, are properly accrued and reflected on the respective Financial Statements.
(iif) All reports, returns and similar documents with respect to the Benefit Plans required to be filed with any governmental agency or distributed to any Benefit Plan participant have been duly and timely filed or distributed.
(g) Each of the Benefit Plans has been administered at all times, and in all material respects, in accordance with its terms. There are no facts pending investigations by any governmental agency involving the Benefit Plans, no termination proceedings involving the Benefit Plans, and no threatened or circumstances exist that pending claims (except for claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings against any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan which could reasonably be expected to give rise to any liability, nor, to the best of the Sellers' or the Company's knowledge, are there any facts which could give rise to any liability in the event of any such Legal Proceedinginvestigation, claim, suit or proceeding.
Appears in 1 contract
Samples: Share Purchase Agreement (Dispatch Management Services Corp)
Employee Matters; Benefit Plans. (a) Subject to applicable Legal RequirementsThe employment of each of the Acquired Companies’ employees located in the United States is terminable by the Acquired Companies at-will. Other than any officers, the employment of each of the Company’s Acquired Companies’ employees located outside of the United States is terminable by the Company at will. Acquired Companies without payment of severance or provision of advance notice in excess of those required by applicable Legal Requirements.
(b) The Company is Acquired Companies are not a party toto or bound by, have no duty to bargain for, nor is are currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization organization, works council or work council labor union representing any of its their employees (each, a “Labor Agreement”) and there are no labor unions, organizations or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Acquired Companies, and there have been no such representation or certification proceedings or, to the knowledge of the Company, demands in the past three (3) years. Since January 1In the past three (3) years, 2019(i) to the knowledge of the Company, there have been no labor organizing activities with respect to any employees of the Acquired Companies, (ii) there has not been any unfair labor practice charge, material grievance, arbitration, strike, slowdown, work stoppage, lockout, material picketing or labor dispute or any union organizing activitydispute, or any threat thereof, in each case, involving thereof affecting the Acquired Companies or any of the Company’s their employees. There is not now pendingThe Acquired Companies owe no pre-signing or pre-Closing notice, andconsultation or other obligations with respect to any labor union, to labor organization or works council in connection with the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or disputeTransactions.
(bc) Since January 1In the past three (3) years, 2019and except for those matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (i) the Acquired Companies have complied with all applicable Legal Requirements related to labor, employment and employment practices, including any pertaining to payment wages and hours of work, immigration (including the completion of Forms I-9 for all U.S. employees and confirmation of employee visas), leaves of absence, plant closings and mass layoffs (including WARN), employment statutes or regulations, workplace health and safety, retaliation, discrimination, whistleblowing, equal opportunity, affirmative action, labor practices, harassment, workers’ compensation, unemployment insurance, and the proper classification and treatment of exempt and non-exempt employees, individual independent contractors, and other non-employee service providers for all applicable purposes, (ii) there has been no material Legal Proceeding pending or threatened in writing or, to the knowledge of the Company, threatened in writing orally relating to such applicable Legal Requirements and (iii) the employment Acquired Companies have fully and timely paid all compensation that has come due and payable to their current or engagement former employees and independent contractors under applicable Legal Requirements, Contracts or company policy.
(d) The Acquired Companies have reasonably investigated all sexual harassment, or other material misconduct allegations against any officers, directors, partners or executive- or senior supervisory-level employees of any Company Associate. Since January 1, 2019, the Acquired Companies with respect to which the Company has complied with all applicable Legal Requirements related knowledge. With respect to employmenteach such allegation (except those the Acquired Companies reasonably deemed to not have merit), including employment practices, payment of wages the Acquired Companies do not anticipate any material liability and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not have taken corrective action reasonably be expected calculated to result in a Material Adverse Effectprevent further improper action.
(ce) Section 3.16(c2.15(e) of the Company Disclosure Schedule Letter sets forth forth, as of the date of this Agreement, a complete and accurate list of the material Employee Plans (other than (i) any offer letters with employees of any Acquired Company that do not provide for the payment of severance or equivalent benefits, retention, change in control or similar payments, or the acceleration of equity or equity-based incentive awards or the grant of equity or equity-based awards (including any stock bonuses and Other Equity-Based Incentive Awards) that is not otherwise formally effectuated by a separate plan or agreement, (ii) standard equity grant notices in such forms as have been made available to Parent, with respect to employees of the Acquired Companies, (iii) agreements with consultants entered into in the ordinary course of business, or (iv) Foreign Employee Plans that are administered by a Governmental Body and required by applicable Legal Requirements (collectively, “Excluded Employee Plans”)) and separately identifies each material Foreign Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, accurate Plan true and complete copies of the followingfollowing (other than any Excluded Employee Plans), as relevant: (iA) all current plan documents and all any material amendments thereto, and all related trust, insurance or other funding documents, and all amendments thereto; (iiB) the most recent any currently effective determination letter or opinion letter received from the IRS; (iiiC) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and (including all schedules thereto and (C) audited financial statementsattachments thereto); (ivD) the most recent summary plan descriptions and any material modifications thereto; (vE) the most recent nondiscrimination (including coverage and compliance) tests required to be performed under the Code; and (viF) any material all non-routine communications correspondence with any Governmental Body regarding any Employee Planduring the past three (3) years.
(df) Neither the an Acquired Company nor any of its ERISA Affiliates has other Person that is or, at any time sponsoredrelevant time, would have been considered a single employer with any of the Acquired Companies under the Code or ERISA currently sponsors, maintains, contributes to, has an obligation to contribute to or otherwise has any current or contingent liability or obligation under or with respect to, or has during the past six (6) years maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension a plan that is or was subject to Title IV of ERISA or Section 412 of the Code or any defined benefit plan” plan (as defined in Section 3(23(35) of ERISA) subject to Title IV of ERISA), Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), (iii) a “multiple employer plan” (within the meaning of Section 3(40210 of ERISA or Section 413 of the Code) or (iv) a “multiemployer plan” as defined in Section 3(37) of ERISA.
(eg) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of the Company, nothing has occurred that could reasonably be expected to adversely affect the tax qualification thereof. Each Except as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each of the Employee Plan Plans is now and has been operated, maintained, funded, administered and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt , (ii) there has been no “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA and Section 4975 or breach of the codefiduciary duty (as determined under ERISA) has occurred or is reasonably expected to occur with respect to any Employee Plan, (iii) there is no Legal Proceeding or claim (other than routine and undisputed claims for benefits) pending or threatened in writing or, to the knowledge of the Company, threatened orally with respect to any Employee Plan (or the assets thereof), (iv) all contributions and other payments that have become due with respect to each Employee Plan have been timely made or paid and (v) no Acquired Company has incurred (whether or not assessed) any Tax or penalty under Section 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(fh) Except to the extent required under Section 601 et seq. of ERISA or Section 4980B of the Code (or any other similar state or local Legal Requirement) at for which the participant’s sole expenserecipient pays the full premium cost, neither the any Acquired Company nor any Employee Plan provides or has any present or future obligation to provide post-employment welfare health or life insurance benefits to any present or make former employee, officer or director of an Acquired Company or any payment toother Person pursuant to any retiree medical benefit plan or otherwise.
(i) Without limiting the generality of the other representations in this Section 2.15, except as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each of the Foreign Employee Plans now complies and has been maintained, funded, administered and operated in compliance with its terms and applicable local Legal Requirements, and (ii) each such plan that is intended to be funded and/or book-reserved is funded and/or book-reserved, as appropriate, based on reasonable actuarial assumptions. Each Foreign Employee Plan required by local Legal Requirements to be registered or approved by a Governmental Body has been so registered or approved. No Foreign Employee Plan is a “defined benefit plan” (as defined in ERISA, whether or not subject to ERISA), seniority premium, termination indemnity, gratuity or similar plan or arrangement, and no material unfunded or underfunded liabilities exist with respect to any Company AssociateForeign Employee Plan.
(gj) Since January 1Except as required by the terms of this Agreement, 2019, all individuals who perform the consummation of any of the Transactions (including in combination with any other event or have performed services for the Company have been properly classified under applicable law as circumstance) would not reasonably be expected to (i) employees accelerate the time of payment, funding or independent contractors and vesting, or increase the amount of, compensation or benefits due under any Employee Plan or otherwise, (ii) for employeesresult in any material compensation or benefits (including any severance) becoming due or payable to any current or former Company Associate, as an “exempt” employee or a “non-exempt” employee (within iii) materially restrict the meaning ability of Parent or any of its Affiliates to amend, merge or terminate any Employee Plan on or after the Effective Time.
(k) The consummation of any of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included Transactions (including in combination with any other event or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which circumstances) would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount or provision of any benefit that could, individually or in combination with any other payment amount or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result as defined in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect Each Employee Plan that constitutes, in whole or in part, a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been operated and maintained, in form and operation, in all material respects in compliance with Section 409A of the Code and all applicable guidance thereunder; and no amount under any such Employee Plan has been, is or is reasonably expected to be subject to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge Tax under Section 409A of the CompanyCode.
(m) No Acquired Company maintains any obligations to gross-up, threatened against indemnify or reimburse any Employee Plancurrent or former Company Associate for any Tax, the assets of any including under Sections 409A or 4999 of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal ProceedingCode.
Appears in 1 contract
Samples: Merger Agreement (PlayAGS, Inc.)
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each As of the Company’s employees date of this Agreement, no Acquired Corporation is terminable by the Company at will. The Company is not a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of an Acquired Corporation. Except as has not had, and would not reasonably be expected to have, individually or in the Company. Since aggregate, a Material Adverse Effect, since January 1, 20192014, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, union organizing activity, or any threat thereofor, in each case, involving any of to the Company’s knowledge, any threat thereof affecting an Acquired Corporation or any of its employees. There is Except as has not now pendinghad, andand would not reasonably be expected to have, to individually or in the knowledge of the Companyaggregate, no Person has threatened in writing to commencea Material Adverse Effect, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since since January 1, 20192014, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 20192014, the Company has Acquired Corporations have complied with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours and other terms and conditions of wages employment (including the classification and hours compensation of workemployees for purposes of the Fair Labor Standards Act and similar state or local Legal Requirements) and other Legal Requirements in respect of any reduction in force, leaves of absenceincluding notice, plant closing notificationinformation and consultation requirements, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except other than any lack of such non-compliance which has not had had, and would not reasonably be expected to result have, individually or in the aggregate, a Material Adverse Effect.
(cb) Section 3.16(cPart 3.15(b) of the Company Disclosure Schedule sets forth a an accurate and complete and accurate list of each the material Employee PlanPlans. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement Agreement, with respect to each material Employee Plan, accurate and complete copies of the following, (as relevantapplicable) of: (i) all the plan documents and all amendments thereto, and all document; (ii) any related trust, insurance trust or other funding documents, and all amendments thereto; (iiiii) the most recent determination letter or opinion letter received from with respect to the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statementsEmployee Plan’s tax-qualified status; (iv) the most recent summary plan descriptions annual actuarial valuation, and any material modifications theretothe most recent Form 5500; and (v) the most recent nondiscrimination tests required to be performed under the Code; summary plan description and (vi) any material non-routine communications with any Governmental Body regarding any Employee Planmodifications thereto.
(dc) Neither the Company an Acquired Corporation nor any of its ERISA Affiliates has other Person that would be or, at any time relevant time, would have been considered a single employer with an Acquired Corporation under the Code or ERISA, has ever sponsored, maintained, contributed to, or been required to contribute to, or otherwise had any liability that has not been satisfied in full in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(ed) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each of the Employee Plan is now and Plans has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(fe) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company any Acquired Corporation nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of an Acquired Corporation pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(jf) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) entitle any current or former Company Associate to severance pay, unemployment compensation or any other cash payment, (ii) accelerate the time of payment or vesting, or increase the amount of, or result in or require the funding of, compensation or benefits due to any such Company Associate, or (iii) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, could constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect . No Acquired Corporation is a party to any Employee PlanContract that would require it to, nor does any Acquired Corporation have any obligation (icurrent or contingent) no Legal Proceeding (other than routine claims to, compensate any individual for benefits in the ordinary course) are pending, or, excise Taxes incurred pursuant to the knowledge Section 4999 of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal ProceedingCode.
Appears in 1 contract
Samples: Merger Agreement (Pfizer Inc)
Employee Matters; Benefit Plans. (a) Part 3.17(a) of the Company Disclosure Schedule identifies each Company Employee Agreement and each material Employee Plan. Subject to applicable Legal RequirementsLaws, the employment of each of the Company’s employees is terminable by the Company at will. .
(b) The Company is not a party toto or bound by, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees Labor Agreement and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 20192020, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting the Company or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(bc) Since January 1, 2019, 2020 there has not been and there is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate, or relating to any Company Employee Agreement or Employee Plan. Since January 1, 20192020, the Company has complied with complied, and is in compliance with, all applicable Legal Requirements Laws related to employment, including employment practices, payment of wages and hours of work, payroll taxes, leaves of absence, plant closing notification, (including the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Laws (the “WARN Act”)), privacy rights, labor dispute, workplace safety, harassment, retaliation, immigration, and discrimination matters, except any lack of compliance which which, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(cd) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective favorable determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statements5500; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with material correspondence from any Governmental Body regarding any Employee Plansince January 1, 2020.
(de) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time relevant time, would have been considered a single employer with the Company under the Code or ERISA has sponsored, maintained, contributed to, or been required to contribute toto a plan subject to Section 302 or Title IV of ERISA or Code Section 412, or had including any liability in respect of, (i) an single employer “employee pension defined benefit plan” (as defined in Section 3(23(35) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 3(37) or 4001 of ERISA. No Employee Plan is The Company does not have any current or contingent liability or obligation on account of at any time being considered a (i) a “multiple single employer plan” as defined in with any other Person under Section 413(c) 414 of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(ef) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a current favorable determination letter (or opinion letter, if applicable) from the IRS as to its qualified status under the Code, and nothing has occurred that would reasonably be expected to adversely affect the qualification of such Employee Plan. Each Except as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, each of the Employee Plan Plans is now and has been operatedestablished, maintained, funded, administered, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, and nothing has occurred and no condition exists with respect to any Employee Plan that would reasonably be expected to result in a material Tax, penalty or other liability or obligation of the Company, including with respect to Sections 4980B, 4980D or 4980H of the Code. No non-exempt There has been no “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA and Section 4975 no breach of the codefiduciary duty (as determined under ERISA) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(fg) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expenseLaw), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment or retiree welfare benefits to or make any payment to, or with respect to to, any Company Associate.
(g) Since January 1present or former employee, 2019officer, all individuals who perform director or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge other service provider of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including either alone or in combination with other events or circumstances) will not (i) result in directly or indirectly cause the Company to transfer or set aside any payment assets to fund any compensation or benefit becoming due to any Company Associate or benefits under any Employee Plan, (ii) entitle any Company Associate to any compensation increase, severance pay or any other material compensatory payment or benefit (whether in the form of cash, property or the vesting of property), (iii) accelerate the time of payment or vesting or increase any the amount of compensation or benefits otherwise payable due to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee PlanAssociate, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with “disqualified individual” receiving any other payment or benefit, constitute an “excess parachute payment” within the meaning of (each such term as defined in Section 280G of the Code), result in (v) limit or restrict the right to amend, terminate or transfer the assets of any Employee Plan on or following the Effective Time or (vi) otherwise give rise to any material liability under any Employee Plan.
(i) The Company is not a party to, or otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up, indemnification, reimbursement of or other payment of an excise tax for any Taxes, including those imposed by any Person under Section Sections 409A or 4999 of the Code (or any amount that would not be deductible under Section 280G corresponding provisions of the Codestate, local or non-U.S. Law relating to Tax).
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Turning Point Therapeutics, Inc.)
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s Acquired Corporations’ employees is terminable by the Company applicable Acquired Corporation at will. The Company .
(b) No Acquired Corporation is not or, since January 31, 2015, with respect to the German Subsidiary, has been a party to, nor or has a duty to bargain for or is currently negotiating in connection with entering into, any collective bargaining agreement agreement, works council agreement, or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Companyan Acquired Corporation. Since January 1, 20192013, with respect to the Company, and since January 31, 2015 with respect to the German Subsidiary, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting an Acquired Corporation or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(b) . No Acquired Corporation is required to notify, consult or negotiate with any labor union, works council, or other employee representative body concerning the terms of employment of their respective employees or the Transactions. Since January 1, 20192013, with respect to the Company, and since January 31, 2015, with respect to the German Subsidiary, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. Since January 1, 20192013, with respect to the Company, and since January 31, 2015, with respect to the German Subsidiary, the Company has Acquired Corporations have complied in all material respects with all applicable Legal Requirements related to employment, including employment practices, payment wages, hours and other terms and conditions of wages employment (including the classification and hours compensation of workemployees for purposes of the Fair Labor Standards Act and cognate state laws), leaves classification of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigrationworkers as employees or independent contractors, and discrimination mattersother Legal Requirements in respect of any reduction in force, except any including notice, information and consultation requirements, the lack of compliance with which has not had and would not reasonably be expected to result in have a Material Adverse Effect.
(c) Section 3.16(c) of . In the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee Plan, accurate and complete copies of the following, as relevant: (i) all plan documents and all amendments thereto, and all related trust, insurance or other funding documents, and all amendments thereto; (ii) the most recent determination letter or opinion letter received from the IRS; (iii) for the three most recent plan past two years, (A) the annual actuarial there has been no “mass layoff,” “employment loss,” or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer planplant closing” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of by the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (WARN Act or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Law in respect of any Company Person nor any Employee Plan has any present Company Person been affected by any transaction or future obligation engaged in any lay-offs or employment terminations sufficient in number to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice trigger application of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classificationslaw.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. The Company is not a party to, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material labor dispute or any union organizing activity, or any threat thereof, in each case, involving any of the Company’s employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 2019, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effect.
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each Employee PlanPurchaser, accurate a correct and complete copies list of the followingnames, as relevant: (i) all plan documents positions and all amendments theretocompensation of each of the present directors, officers and all related trust, insurance or other funding documents, and all amendments thereto; (ii) the most recent determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications Union employees of the Company together with any Governmental Body regarding any Employee Plan.their current annual rates of salary and bonus and a summary description of agreements for commissions or additional compensation and other like benefits, if any, payable to such individuals, including severance benefits; except as set forth on Schedule 3.23
(da) Neither neither the Company nor any Seller has received notice from any employee of its ERISA Affiliates the Company that such employee intends to terminate his or her employment with the Company within the next sixty (60) days;
(b) except as set forth on Schedule 3.23(b), all of the Company's employees may be terminated at will without any liability or obligation of the Company except for compensation earned prior to such termination and owed pursuant to the terms of their employment prior to such termination; neither the Company nor any Seller has any Knowledge of any basis for, any material claim against the Company by any employee or agent of the Company as a result of the Company's execution, delivery or performance of this Agreement;
(c) set forth on Schedule 3.23(c) is a list of each Benefit Plan that is maintained and operated by or on behalf of the Company or in which the Company is a contributing employer; the form and operation of each Benefit Plan currently or at any time sponsored, maintained, contributed to, maintained or been required to contribute to, operated by or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) on behalf of the CodeCompany is and at all times has been in material compliance with the IRC, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee ERISA and all other applicable Laws; any such Benefit Plan that is intended purports to be a "qualified plan" under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and IRC has been operateddetermined to be so qualified by the IRS and, maintainedto the Company's and each Seller's Knowledge, nothing has occurred that would cause the loss of such qualification; since December 31, 1996, the Company and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (any entity of a "controlled group" within the meaning of Section 406 of ERISA and Section 4975 412(n)(6)(B) of the codeIRC in which the Company has been a member has not maintained, operated, caused to be maintained or operated on its behalf, or contributed to a Benefit Plan which (i) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(fa "defined benefit plan" within the meaning of Section 3(35) Except to the extent required under Section 601 et seq. of ERISA or a "multiemployer benefit plan" as defined in Section 3(37) of ERISA, (ii) provides post-retirement health or death benefit coverage (other than as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code IRC or similar state law), (iii) is a plan described in Section 413(a) or 413(c) of the IRC or Section 3(40) of ERISA or (iv) is subject to the minimum funding requirements of Section 412 of the IRC; no suit, actions or other litigation have been brought or, to the Knowledge of the Company or any other similar state or local Legal Requirement) at the participant’s sole expenseSeller, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, threatened against or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending orBenefit Plan and, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director Knowledge of the Company or under any Employee Planand the Sellers, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) there are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist known to the Company or any Seller that could would reasonably be expected to give rise to any such Legal Proceedingsuit, action or other litigation that would result, individually or in the aggregate, in a material liability to the Company.
Appears in 1 contract
Samples: Stock Purchase Agreement (EVCI Career Colleges Holding Corp)
Employee Matters; Benefit Plans. (ai) Subject to Except as required by applicable Legal RequirementsLaws, the employment of each of the Company’s employees located in the United States is terminable by the Company at will. The .
(ii) None of the members of the Company Group is not a party to, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the CompanyCompany Group. Since January 1, 20192021, through the date of this Agreement, there has not been any strike, slowdown, work stoppage, lockout, material picketing or labor dispute or any union organizing activitydispute, or any threat thereof, in each case, involving thereof affecting the Company Group or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity or any similar activity or dispute.
(b) Since January 1, 20192021, and except for those matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company Group has complied with all applicable Laws related to employment and employment practices, including any pertaining to payment wages and hours of work, leaves of absence, plant closing notifications, employment statutes or regulations, workplace health and safety, retaliation, or discrimination matters, including charges of unfair labor practices or harassment complaints, and, as of the date of this Agreement, there has been is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 2019, the Company has complied with all such applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse EffectLaws.
(ciii) To the knowledge of the Company, in the last five years, (A) no allegations of sexual harassment, discrimination or sexual misconduct have been made against any member of the Company Board or any officer of the Company Group subject to the reporting requirements of Section 16(a) of the Exchange Act, (B) no member of the Company Group has entered into any settlement agreement related to allegations of sexual harassment, discrimination or sexual misconduct by any member of the Company Board or any officer of the Company Group subject to the reporting requirements of Section 16(a) of the Exchange Act and (C) there have been no, and there are no proceedings currently pending or, to the knowledge of the Company, threatened, related to any allegations of sexual harassment, discrimination or sexual misconduct by any member of the Company Board or any officer of the Company Group subject to the reporting requirements of Section 16(a) of the Exchange Act.
(iv) Section 3.16(c6.1(q)(iv) of the Company Disclosure Schedule sets forth a true and complete and accurate list of each the material Employee Plan. Agreements as of the date of this Agreement
(A) the terms of which obligate the Company or any member of the Company Group to provide any severance or termination benefits to any employee, other than as may be required by applicable Laws; or (B) pursuant to which the Company or any member of the Company Group is obligated to provide any change-in-control, retention, or similar payment or benefits to any employee.
(v) Section 6.1(q)(v) of the Company Disclosure Schedule sets forth a true and complete list of the material Employee Plans.
(vi) The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the followingfollowing (other than equity grant notices, and related documentation, with respect to employees of the Company Group and agreements with consultants entered into in the ordinary course of business), as relevant: (iA) all plan documents and all amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (iiB) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) the IRS Form 5500 and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has at any time sponsored, maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Code Section 412 or Section 302 of ERISA, including any “multiemployer plan” as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each Employee Plan is now and has been operated, maintained, and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 of the Code.
(i) Each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
(k) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.United States Internal Revenue Service;
Appears in 1 contract
Samples: Transaction Agreement
Employee Matters; Benefit Plans. (a) Subject to applicable Legal Requirements, the employment of each of the Company’s employees is terminable by the Company at will. The Company is not a party to, has no duty to bargain for, nor is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute or any dispute, question concerning labor representation, union organizing activity, or any threat thereof, in each caseor any similar activity or dispute, involving affecting the Company or any of the Company’s its employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material job action, picketing, labor dispute dispute, question regarding labor representation or union organizing activity or any similar activity or dispute.
(b) Since January 1, 2019, there has been is no material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate, including relating to any Employee Plan. Since January 1, 2019, the Company has complied with all applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effect.
(c) Section 3.16(c) of the Company Disclosure Schedule sets forth a complete and accurate list of each material Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee PlanPlan (excluding for this purpose all employment agreements, offer letters, and consulting agreements that do not materially deviate from the Company’s standard form) accurate and complete copies of the following, as relevant: (i) all material plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statementsthereto; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the most recent nondiscrimination tests required to be performed under the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee Plan.
(d) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Company under the Code or ERISA has during the past six years maintained, contributed to, or been required to contribute to, or had any liability in respect of, to (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a , (iii) a “multiple employer plan” as defined in Section 413(c) of the Code, or (iiiii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. Each To the knowledge of the Company, each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director or contractor of the Company pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan or Employee Plan.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as (i) employees or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning any such classifications.
(h) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual individual, including under Sections 409A or 4999 of the CodeCode or otherwise.
(i) Each Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each “nonqualified deferred compensation plan” maintained by the Company has been at all times in material documentary and operational compliance with the requirements of Code Section 409A and the guidance provided thereunder.409A.
(j) The Except as provided in Section 6.3, the consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in any payment or benefit becoming due to any current or former employee, contractor or director of the Company Associate or under any Employee Plan, (ii) increase any amount of compensation or benefits otherwise payable to any current or former employee, contractor or director of the Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit the right to modify, amend or terminate any Employee Plan (except any limitations imposed by applicable Legal Requirements, if any).
, or (kv) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, Code or result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(lk) With Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, with respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) to the knowledge of the Company, no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
(l) No Company Associates were furloughed, terminated, laid off, had their hours reduced or had their compensation reduced by the Company or any of its Subsidiaries as a direct result of COVID-19.
(m) The Company is in compliance with any and all “stay-at-home” orders or similar directives issued by state or local health authorities applicable to any location in which the Company operates. To the extent the Company is requiring employees to perform in-person work in any locations subject to a health and safety order, the Company represents that its requirements for in-person services meet the standards set forth in the current order. To the extent the Company is aware of any employees that have tested positive for COVID-19, the Company has taken all necessary precautions with respect to such employee and his/her suspected close contacts required by any applicable federal, state, and local health authorities. The Company has also documented any work-related injury and illness to the extent required by the U.S. Occupational Safety and Health Administration.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal RequirementsLaws, the employment of each of the Company’s employees is terminable by the Company at will. The .
(b) As of the Agreement Date, the Company is not a party to, nor has no duty to bargain for, or is not currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work council representing any of its employees and there are no labor organizations representing, purporting to represent or, to the knowledge Knowledge of the Company, seeking to represent any employees of the Company. Since January 1, 2019, there has not been any strike, slowdown, work stoppage, lockout, material picketing or labor dispute dispute, affecting the Company or any union organizing activity, or any threat thereof, in each case, involving any of its employees. As of the Company’s employees. There Agreement Date, there is not now pending, and, to the knowledge Knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material picketing or labor dispute or union organizing activity or any similar activity or dispute.
(bc) Since January 1, 2019As of the Agreement Date, there has been is no material Legal Proceeding pending or, to the knowledge Knowledge of the Company, threatened in writing relating to the employment, including relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or engagement of regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints, other than any Legal Proceedings that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Since January 1, 2019, the Company has complied in all material respects with all applicable Legal Requirements Laws related to employment, including applicable Laws relating to employment practices, payment wages, hours and other terms and conditions of wages employment, any reduction in force (including notice, information and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse Effectconsultation requirements).
(cd) Since January 1, 2019, the Company has not been a party to a settlement agreement with a current or former officer, employee or independent contractor of the Company that involves allegations relating to sexual harassment, sexual misconduct or any form of illegal discrimination by either an officer or employee of the Company at the level of Vice President or above. Since January 1, 2019, to the Knowledge of the Company, no allegations of sexual harassment, sexual misconduct or any form of illegal discrimination have been made against an officer or employee of the Company at the level of Vice President or above.
(e) Section 3.16(c4.18(e) of the Company Disclosure Schedule sets forth a complete and accurate list of each material Employee Plan. The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement with respect to each material Employee Plan, Plan accurate and complete copies of the following, as relevant: (i) all material plan documents and all material amendments thereto, and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 5500; and all schedules thereto and (C) audited financial statements; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) . No Employee Plan is subject to the most recent nondiscrimination tests required to be performed under Laws of a jurisdiction outside the Code; and (vi) any material non-routine communications with any Governmental Body regarding any Employee PlanUnited States.
(df) Neither the Company nor any of its ERISA Affiliates has other Person that would be or, at any time sponsoredrelevant time, would have been considered a single employer with the Company within the meaning of Section 414(b), (c), (m), or (o) of the Code has, to the Knowledge of the Company, during the past six (6) years maintained, contributed to, or been required to contribute to, or had any liability in respect of, (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) to a plan subject to Title IV of ERISA, ERISA or Code Section 412 or Section 302 of ERISA412, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a (i) a “multiple employer plan” as defined in Section 413(c) of the Code, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(eg) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the CodeCode and, to the Company’s Knowledge, nothing has occurred that would adversely affect the qualification or tax exemption of any such Employee Plan. Each To the Knowledge of the Company, each of the Employee Plan Plans is now and has been operated, maintained, and administered operated in compliance in all material respects with its terms and all applicable Legal RequirementsLaws, including but not limited to ERISA and the Code. No non-exempt “prohibited transaction” (within All contributions or other amounts payable by the meaning of Section 406 of ERISA and Section 4975 of the code) has occurred or is reasonably expected to occur Company with respect to any Employee Plan.
(f) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense, neither the Company nor any each Employee Plan has any present in respect of current or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to any Company Associate.
(g) Since January 1, 2019, all individuals who perform or have performed services for the Company prior plan years have been properly classified under applicable law as (i) employees paid or independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws), and no such individual has been improperly included or excluded from any Employee Plan, except for misclassifications, non-compliance or exclusions which would not reasonably be expected to result accrued in a Material Adverse Effect and the Company has not received notice of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classificationsaccordance with GAAP.
(h) The Company maintains no obligations Except as provided for pursuant to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual under Sections 409A or 4999 this Agreement, neither the approval of the Code.
(i) Each “nonqualified deferred compensation plan” maintained this Agreement by the Company has been at all times in material documentary and operational compliance with Board nor the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including could, either alone or in combination with other events or circumstances) will not another event, (i) result in any payment or benefit becoming due to any current or former Company Associate Associate, including any severance, unemployment compensation or under any Employee Planother cash payment, (ii) increase any amount of compensation or benefits otherwise payable to any Company Associate or under any Employee Plan, (iii) result in the acceleration of the time of paymentpayment or vesting, funding or vesting of the increase in the amount of, compensation or benefits due to any such Company Associate, (iii) directly or indirectly cause the Company to transfer or set aside any material assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) otherwise give rise to any material liability under any Employee Plan or limit or restrict the right to modifymerge, amend materially amend, terminate or terminate transfer the assets of any Employee Plan on or following the Effective Time or (except any limitations imposed by applicable Legal Requirements, if any).
(kv) The consummation of the Transactions (including in combination with other events or circumstances) will not result in the payment of any amount that could, individually or in combination with any other payment or benefitsuch payment, constitute an “excess parachute payment” within as defined in Section 280G(b)(1) of the meaning Code. The Company does not have any obligation to provide, and no Employee Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under of Section 280G of the Code, result in the payment of an excise tax by any Person under Section 4999 of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Subject to Except as required by applicable Legal Requirements, the employment of each of the Company’s employees of the Company or its Subsidiaries located in United States is terminable by the Company or any of its Subsidiaries (as applicable) at will. The Other than any officers identified on Section 2.18(a) of the Company Disclosure Schedule, the employment of each of the employees of the Company or its Subsidiaries located outside of the United States is not a terminable by the Company or any of its Subsidiaries, as applicable, without payment of severance or provision of advance notice in excess of those required by applicable Legal Requirements.
(b) Neither the Company nor any of its Subsidiaries is party to, nor has any duty to bargain for, or is currently negotiating in connection with entering into, any collective bargaining agreement or other Contract with a labor organization or work works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, seeking to represent any employees of the CompanyCompany or its Subsidiaries. No notice, consent or consultation obligations with respect to any employees of the Company or its Subsidiaries, or any Union, will be a condition precedent to, or triggered by, the execution of this Agreement or the consummation of the transactions contemplated hereby. Since January 1April 30, 20192022, there has not been any strike, material slowdown, work stoppage, lockout, material picketing or labor dispute or any union organizing activitydispute, or any threat thereof, in each case, involving any of the Company’s employees. There is not now pending, and, or to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, material labor dispute or union organizing activity effort affecting the Company and its Subsidiaries or any similar activity of their employees. Since April 30, 2022, and except for those matters that have not had, and would not reasonably be expected to have, individually or dispute.
in the aggregate, a Material Adverse Effect, the Company and its Subsidiaries have complied with all applicable Legal Requirements related to employment and employment practices, including any pertaining to payment of wages and hours of work, leaves of absence, plant closing notifications, employment statutes or regulations, workplace health and safety, retaliation, or discrimination matters, including charges of unfair labor practices or harassment complaints, and there is no (b) Since January 1and since April 30, 20192022, there has been no no) material Legal Proceeding pending or, to the knowledge of the Company, threatened in writing relating to the employment or engagement of any Company Associate. Since January 1, 2019, the Company has complied with all such applicable Legal Requirements related to employment, including employment practices, payment of wages and hours of work, leaves of absence, plant closing notification, privacy rights, labor dispute, workplace safety, retaliation, immigration, and discrimination matters, except any lack of compliance which has not had and would not reasonably be expected to result in a Material Adverse EffectRequirements.
(c) There is no, and since April 30, 2022, there has been no pending or, to the knowledge of the Company, threatened Legal Proceeding or settlement or, to the knowledge of the Company, allegation, in each case, relating to sex-based discrimination, sexual harassment or sexual misconduct involving the Company or any of its Subsidiaries or any of their current or former executives, officers or directors in relation to their work for the Company or any of its Subsidiaries. No Company Associate who is an officer, or who earns annual base compensation equal to or exceeding $250,000 (i) to the knowledge of the Company, has given notice of termination of employment or otherwise disclosed plans to terminate employment with any of the Company or its Subsidiaries within the twelve (12) month period following the date hereof or (ii) is employed under a non-immigrant work visa or other work authorization that is limited in duration.
(d) Section 3.16(c2.18(d) of the Company Disclosure Schedule sets forth a complete and accurate list of the material Employee Plans (which will not include any employment agreement for non‑officer employees of the Company or its Subsidiaries and equity grant notices, and related documentation, with respect to employees of the Company or its Subsidiaries and agreements with consultants entered into in the ordinary course of business, in each case, that is in all material respects consistent with a standard form agreement or notice made available to Parent prior to the date of this Agreement, which standard form or notice is scheduled on Section 2.18(d) of the Company Disclosure Schedule) and separately identifies each material Employee Plan that is maintained primarily for the benefit of any current or former Company Associate who performs or performed services for the Company or its Subsidiaries outside the United States (each, a “Foreign Employee Plan”). The Company has either delivered or made available to Parent or Parent’s Representatives prior to the execution of this Agreement , with respect to each material Employee Plan, accurate and complete copies of the followingfollowing (other than any employment agreement for non‑officer employees of the Company or its Subsidiaries and equity grant notices, and related documentation, with respect to employees of the Company or its Subsidiaries and agreements with consultants entered into in the ordinary course of business, in each case, that is in all material respects consistent with a standard form agreement or notice made available to Parent prior to the date of this Agreement), as relevant: (i) all plan documents and all amendments theretothereto (or, if not reduced to writing, a written summary of all material plan terms), and all related trust, insurance trust or other funding documents, and all amendments thereto; (ii) the most recent any currently effective determination letter or opinion letter received from the IRS; (iii) for the three most recent plan years, (A) the annual actuarial or other valuation reports, (B) and the IRS most recent Form 5500 and all schedules thereto and (C) audited financial statements5500; (iv) the most recent summary plan descriptions and any material modifications thereto; (v) the results from the most recent nondiscrimination tests required to be performed under the CodeCode for each of the last three (3) years; (vi) all Forms 1094-C for the Company for 2019 to 2023; and (vivii) any material non-routine communications correspondence (including any applications or submissions under any voluntary correction programs) with any Governmental Body regarding any Employee Planwithin the last six (6) years.
(de) Neither No Employee Plan is, and neither the Company nor any of its ERISA Affiliates has Subsidiaries nor any other Person that would be or, at any time relevant time, would have been considered a single employer with any of the Company and its Subsidiaries under the Code or ERISA has during the past six years sponsored, maintained, contributed to, or been required to contribute to, or has, or during the past six (6) years has had any liability (actual or contingent) in respect of, of (i) an a “employee pension defined benefit plan” (as defined in Section 3(23(35) of ERISA) or any other plan that is or was subject to Title IV of ERISA, Code Section 412 or 430 of the Code or Section 302 of ERISA, including any “single employer” defined benefit plan or any “multiemployer plan” each as defined in Section 4001 of ERISA. No Employee Plan is a , (iii) a “multiple employer plan” as defined described in Section 413(c) of the CodeCode or Section 210 of ERISA, or (iiiii) a “multiple employer welfare arrangement” within the meaning of as defined in Section 3(40) of ERISA.
(ef) Each of the Employee Plan Plans that is intended to be qualified under Section 401(a) of the Code has obtained and each trust related thereto that is intended to be exempt from Taxes under Section 501(a) of the Code is the subject of a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the CodeCode and to the knowledge of the Company, no event has occurred since the date of the most recent determination or opinion letter that would reasonably be expected to cause the revocation of such determination or letter or result in any material liability to the Company or its Subsidiaries. Each of the Employee Plan Plans is now and has been operated, maintained, funded and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code, and all required contributions, distributions, and premiums under each Employee Plan for any period ending on or before the Closing Date have been made or accrued, to the extent required to be accrued under GAAP. No non-exempt Neither the Company, nor to the knowledge of the Company, any fiduciary, trustee or administrator of any Employee Plan, has engaged in any transaction with respect to any Employee Plan that could subject any such Employee Plan, the Company or its Subsidiaries, to any liability for a “prohibited transaction” (within the meaning of Section 406 of ERISA and or Code Section 4975 or that has subjected or would reasonably be expected to subject the Company or its Subsidiaries to any tax or other penalty under the Code, ERISA, or any other applicable Legal Requirements. Neither the Company nor any of its Subsidiaries has incurred or would reasonably be expected to incur or be subject to any penalty, Tax (whether or not assessed) or other penalty under the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act (including with respect to the reporting requirements under Sections 6055 and 6056 of the codeCode, as applicable) has occurred or Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(g) There is reasonably expected no pending or, to occur the knowledge of the Company, threatened Legal Proceeding with respect to any Employee PlanPlan (other than routine claims for benefits), and to the knowledge of the Company, no fact or circumstance exists that would be reasonably likely to give rise to any such Legal Proceeding. No Employee Plan is, or within the last six (6) years has been, the subject of an examination or audit by a Governmental Body, or the subject of an application or filing under, or a participant in, a government-sponsored amnesty, voluntary compliance, self-correction or similar program.
(fh) Except to the extent required under Section 601 et seq. of ERISA or Section 4980B of the Code (or any other similar state or local Legal Requirement) at the participant’s sole expense), neither the Company Company, any of its Subsidiaries, nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer or director of the Company or any of its Subsidiaries pursuant to any Company Associateretiree medical benefit plan or other retiree welfare plan.
(gi) Since January 1, 2019, all individuals who perform or have performed services for the Company have been properly classified under applicable law as All Foreign Employee Plans (i) employees or independent contractors comply in all material respects with applicable local Legal Requirements, and (ii) for employeesthat are intended to be funded or book-reserved are funded or book-reserved, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act of 1938 and applicable state laws)appropriate, and no such individual has been improperly included or excluded from any Employee Planbased on reasonable actuarial assumptions, except for misclassifications, non-compliance where such failure to comply or exclusions which failure to be so funded or book reserved has not had and would not reasonably be expected to result result, individually or in the aggregate, in a Material Adverse Effect and material liability to the Company has not received notice and its Subsidiaries or otherwise interfere in any material respect with the conduct of any pending or, to the knowledge of the Company, threatened inquiry or audit from any Governmental Body concerning such classificationstheir respective businesses as now being conducted.
(hj) The Company maintains no obligations Each Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in compliance with Section 409A of the Code. No Person is entitled to any gross-up up, make-whole, indemnification, reimbursement, or reimburse other additional payment from the Company or its Subsidiaries in respect of any individual for any tax Tax or related interest or penalties incurred by such individual penalty under Sections Section 409A of the Code or Section 4999 of the Code.
(ik) Each “nonqualified deferred compensation plan” maintained by Except as set forth on Section 2.18(k) of the Company has been at all times in material documentary and operational compliance with Disclosure Schedule, the requirements of Code Section 409A and the guidance provided thereunder.
(j) The consummation of the Transactions (including in combination with other events or circumstances) will not (i) result in entitle any payment current or benefit becoming due former Company Associate to any Company Associate or under any Employee Plancash payment, (ii) cause or accelerate the time of payment or vesting, or increase any the amount of of, compensation or benefits otherwise payable due to any such current or former Company Associate or under any Employee PlanAssociate, (iii) result in directly or indirectly cause the acceleration of the time of payment, funding Company and its Subsidiaries to transfer or vesting of set aside any material assets to fund any benefits to any current or former employee, contractor or director of the Company or under any Employee Plan, (iv) limit or restrict the right of the Company, Parent, or any of their respective Affiliates to modifymerge, amend or terminate any Employee Plan Plan, (except v) result in any limitations imposed by applicable Legal Requirementsforgiveness of indebtedness of any current or former Company Associate, if any).
(kvi) The consummation of the Transactions otherwise give rise to any liability under any Employee Plan, or (including in combination with other events or circumstancesvii) will not result in the payment of any amount that could, individually or in combination with any other payment or benefit, constitute an “excess parachute payment” within the meaning of Section 280G of the Code, result Code or in the payment of an any deduction limitation or excise tax imposed under or by any Person under Section 4999 operation of the Code or any amount that would not be deductible under Section 280G of the Code.
(l) With respect to any Employee Plan, (i) no Legal Proceeding (other than routine claims for benefits in the ordinary course) are pending, or, to the knowledge of the Company, threatened against any Employee Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Plan with respect to the operation thereof, and (ii) no facts or circumstances exist that could reasonably be expected to give rise to any such Legal Proceeding.
Appears in 1 contract
