Employee Matters; Benefit Plans. (a) Section 3.12(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each material Company Benefit Plan. With respect to each material Company Benefit Plan, the Company has made available to Parent an accurate and complete copy of: (i) each plan document, including all amendments thereto, and all related trusts; (ii) the current summary plan description, including any material modifications; (iii) the most recent determination letter (or if applicable, advisory or opinion letter) from the IRS, if any, and any pending applications for a determination or opinion letter; and (iv) all material notices or other non-routine material written correspondence regarding such Company Benefit Plan between a plan fiduciary, any Acquired Company, or any ERISA Affiliate and the IRS, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental Entity. (b) None of the Acquired Companies nor any ERISA Affiliate thereof sponsors, maintains or contributes or is obligated to contribute to, or has ever sponsored, maintained, contributed or been obligated to contribute to, or incurred any liability with respect to: (i) any plan subject to Title IV of ERISA or Section 412 of the Code, (ii) any “multiemployer plan” within the meaning of Section 4001(a)(3) or 3(37) of ERISA, (iii) any “multiple employer plan” within the meaning of Section 4063 or 4064 of ERISA, (iv) any “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA or (v) any health or other welfare arrangement that is self-insured. No Company Benefit Plan is or has ever been, or currently funds or has ever been funded by, a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code or other funding arrangement for the provision of welfare benefits. (c) Each Company Benefit Plan intended to be qualified under Section 401(a) of the Code is entitled to rely upon a favorable determination or opinion letter from the IRS. To the Knowledge of the Company, no event has occurred and no condition, facts or circumstances exist that would reasonably be expected to cause the loss of such qualification or the imposition of material liability, penalty or Tax under ERISA, the Code or other applicable Laws. All assets of the Company Benefit Plans consist of cash or actively traded securities. No assets of any Company Benefit Plan consist of capital stock of the Company, other than with respect to the Company Equity Plans and ESPP. (d) (i) Each Company Benefit Plan has been established, operated, administered and maintained in compliance in all material respects with its terms and with the requirements prescribed by applicable Laws, including ERISA and the Code; (ii) no litigation has commenced with respect to any Company Benefit Plan (other than routine claims for benefits) and, to the Knowledge of the Company, no such litigation is threatened; (iii) there are no material governmental audits or investigations pending or, to the Knowledge of the Company, threatened in connection with any Company Benefit Plan; and (iv) to the Knowledge of the Company, there are no facts or circumstances that reasonably would be expected to give rise to any litigation, audits, investigations, actions, or claims against any Company Benefit Plan, any fiduciary with respect to a Company Benefit Plan or the assets of a Company Benefit Plan. Except as would not reasonably be expected to be material to the Acquired Companies, (i) none of the Acquired Companies have engaged in any non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) and, to the Knowledge of the Company, no such prohibited transaction has occurred with respect to any Company Benefit Plan and (ii) no fiduciary (within the meaning of Section 3(21) of ERISA) that is an Acquired Company or a committee or employee of an Acquired Company, and, to the Knowledge of the Company, no fiduciary who is not an Acquired Company or a committee or employee of an Acquired Company, has breached such fiduciary’s fiduciary duty under ERISA with respect to a Company Benefit Plan or otherwise has any liability in connection with any acts taken (or failed to be taken) with respect to the administration or investment of the assets of any Company Benefit Plan. (e) Except as provided in Section 2.4, neither the execution and delivery of this Agreement nor the consummation of the Contemplated Transactions will (either alone or together with any other event) (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former employee, officer, director or other service provider of any Acquired Company, (ii) result in any “parachute payment” (as defined in Section 280G(b)(2) of the Code) or (iii) result in the triggering or imposition of any restrictions or limitations on the rights of the Acquired Companies to amend or terminate any Company Benefit Plan. No Company Benefit Plan provides, and no Acquired Company has any obligation to provide, a tax “gross-up” or similar “make-whole” payment to any current or former employee, officer, director, or other service provider of any Acquired Company, and no such obligation will arise as a result of the execution and delivery of this Agreement or the consummation of the Contemplated Transactions (either alone or together with any other event) or otherwise. (f) No Company Benefit Plan provides for, and none of the Acquired Companies has any obligation to provide, any post-retirement or post-termination health, life insurance or other welfare benefits, except as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or similar state Law for which the individual pays for the full cost of coverage. Each Company Benefit Plan that is a health plan is in compliance in all material respects with the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, and the Acquired Companies have offered all full-time employees the ability to elect minimum essential coverage that provides minimum value for themselves and their dependents in accordance with such Laws. (g) Each Company Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been operated and maintained in compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder and in compliance in all material respects with the terms of such Company Benefit Plan. (h) No Company Benefit Plan is subject to any Laws other than those of the United States or any state, county, or municipality in the United States, nor is any Company Benefit Plan maintained for the benefit of employees, officers, directors, consultants or other service providers located outside of the United States. No Acquired Company contributes to or has any obligation to contribute to any scheme, plan or arrangement mandated by a government other than the United States federal government. Except as set forth on Section 3.12(h) of the Company Disclosure Schedule, there has been no amendment to, or written interpretation of or announcement by any Acquired Company relating to, or change in employee participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred in respect thereof for the most recent fiscal year ending prior to the Closing Date. For each Company Benefit Plan, all contributions, premiums and payments that have become due through the date hereof have been made within the time periods prescribed by the terms of such plan and applicable Laws.
Appears in 2 contracts
Samples: Merger Agreement (BioNTech SE), Merger Agreement (Neon Therapeutics, Inc.)
Employee Matters; Benefit Plans. (a) Section 3.12(aPart 3.14(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each material Employee Plan that is sponsored or maintained by the Company Benefit Plan. With or any ERISA Affiliate or with respect to each material which the Company Benefit or any ERISA Affiliate has or may have any liability (each, a “Company Employee Plan, the ”). The Company has made available to Parent an accurate and complete copy ofor Parent’s Representatives on or prior to the date of this Agreement with respect to each Company Employee Plan, to the extent applicable: (iA) each all plan document, including all documents and amendments thereto, and all related trusts; trust agreements, insurance contracts or other funding documents (ii) the current summary plan descriptionincluding a written description of such plan, including any material modifications; if unwritten), (iiiB) the most recent determination letter (or if applicable, advisory or opinion letterletter issued by the IRS or the United States Department of Labor (“DOL”), (C) the most recent actuarial valuation or annual report (Form Series 5500 and all schedules and financial statements attached thereto), (D) the most recent summary plan descriptions and any material modifications thereto, and (E) all material correspondence to or from the IRS, if any, and any pending applications for a determination or opinion letter; and (iv) all material notices or other non-routine material written correspondence regarding such Company Benefit Plan between a plan fiduciary, any Acquired Companythe DOL, or any ERISA Affiliate and the IRS, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental EntityBody for the last three years.
(b) None No Company Employee Plan is a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which the Company or any ERISA Affiliate could incur liability under Section 4063 or 4064 of ERISA or a plan maintained by more than one employer as described in Section 413(c) of the Acquired Companies Code.
(c) Neither the Company nor any ERISA Affiliate thereof sponsors, maintains or contributes or is obligated to contribute to, or has ever sponsored, maintained, contributed maintained any Company Employee Plan that is or been obligated to contribute to, or incurred any liability with respect to: (i) any plan was subject to Title IV of ERISA or ERISA, Section 412 of the Code, (ii) any Section 302 of ERISA or is a “multiemployer plan” (within the meaning of Section 4001(a)(3Sections 3(37) or 3(374001(a)(3) of ERISA, (iii) and neither the Company nor any “multiple employer plan” within the meaning of Section 4063 or 4064 of ERISA, (iv) ERISA Affiliate has incurred any “multiple employer welfare arrangement” within the meaning of Section 3(40) liability under Title IV of ERISA or (v) any health or other welfare arrangement that is self-insured. No Company Benefit Plan is or has ever been, or currently funds or has ever not been funded by, a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code or other funding arrangement for the provision of welfare benefitspaid in full.
(cd) Each of the Company Benefit Plan Employee Plans that is intended to be qualified under Section 401(a) of the Code is entitled to rely upon has obtained a favorable determination letter (or opinion letter from the IRS. To the Knowledge of the Companyletter, no event has occurred and no condition, facts or circumstances exist that would reasonably be expected if applicable) as to cause the loss of such qualification or the imposition of material liability, penalty or Tax its qualified status under ERISA, the Code or other applicable Laws. All assets of the Company Benefit Plans consist of cash or actively traded securities. No assets of any Company Benefit Plan consist of capital stock of the Company, other than with respect to the Company Equity Plans and ESPP.
(d) (i) Each Company Benefit Plan has been established, operated, administered and maintained in compliance in all material respects with its terms and with the requirements prescribed by applicable Laws, including ERISA and the Code; (ii) no litigation has commenced with respect to any Company Benefit Plan (other than routine claims for benefits) and, to the Knowledge of the Company, nothing has occurred that would be reasonably expected to result in the loss of such qualification or exemption. Each of the Company Employee Plans is and has been operated in all material respects in compliance with its terms and all applicable Law, including ERISA and the Code, except where the failure to operate such Company Employee Plans in accordance with their terms and applicable Law did not and could not, individually or in the aggregate, result in any material liability to the Acquired Corporations. For the last three years, no such litigation or governmental administrative proceeding, audit or other Legal Proceeding (other than those relating to routine claims for benefits) is threatened; (iii) there are no material governmental audits or investigations pending or, to the Knowledge of the CompanyAcquired Corporations, threatened in connection with any Company Benefit Plan; and (iv) to the Knowledge of the Company, there are no facts or circumstances that reasonably would be expected to give rise to any litigation, audits, investigations, actions, or claims against any Company Benefit Plan, any fiduciary with respect to a Company Benefit Plan or the assets of a Company Benefit Plan. Except as would not reasonably be expected to be material to the Acquired Companies, (i) none of the Acquired Companies have engaged in any non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) and, to the Knowledge of the Company, no such prohibited transaction has occurred writing with respect to any Company Benefit Plan and (ii) no fiduciary (within the meaning of Section 3(21) of ERISA) that is an Acquired Company or a committee or employee of an Acquired CompanyEmployee Plan, and, to the Knowledge of the CompanyAcquired Corporation, there is no fiduciary who is reasonable basis for any such litigation or Legal Proceeding, except as would not result in any material liability to any Acquired Corporation. All payments and/or contributions required to have been made by an Acquired Company or a committee or employee of an Acquired Company, has breached such fiduciary’s fiduciary duty under ERISA Corporation with respect to a all Company Benefit Plan Employee Plans either have been made or otherwise has any liability have been accrued in connection accordance with any acts taken (or failed to be taken) with respect to the administration or investment terms of the assets of applicable Company Employee Plan and applicable Law, except as would not result in any Company Benefit Planmaterial liability to any Acquired Corporation.
(e) None of the Company Employee Plans provide health care or any other non-pension benefits to any Company Associates after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA or similar state law) and the Company has never promised to provide such post-termination benefits except pursuant to executive employment agreements.
(f) No Acquired Corporation has announced its intention to modify or terminate any Company Employee Plan or adopt any arrangement or program which, once established, would come within the definition of a Company Employee Plan.
(g) The per share exercise price of each Company Option is no less than the fair market value of a Share on the date of grant of such Company Option (and as of each later modification thereof within the meaning of Section 409A of the Code) determined in a manner consistent with Section 409A of the Code. With respect to each Company Employee Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(l) of the Code), (i) such plan has been operated in accordance with a good faith, reasonable interpretation of Section 409A of the Code, (ii) such plan has been operated in all material respects since January 1, 2009 in accordance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder to the extent such plan is subject to Section 409A of the Code and so as to avoid any Tax, interest or penalty thereunder and (iii) the document or documents that evidence each such plan have complied with the provisions of Section 409A of the Code and the final regulations under Section 409A of the Code in all material respects since January 1, 2009. No payments on account of the Contemplated Transactions would cause any material liability to an Acquired Corporation under Section 409A of the Code.
(h) Except as provided set forth in Section 2.4Part 3.14(h) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement Agreement, the Company Stockholder Approval of this Agreement, nor the consummation of the Contemplated Transactions will could (either alone or together in conjunction with any other event) (i) result in, or cause the accelerated vesting, vesting payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former employee, officer, director or other service provider of any the Acquired Company, Corporation; (ii) limit the right of the Acquired Corporation to amend, merge or terminate any Company Employee Plan or related trust; (iii) result in any “parachute payment” (as defined in Section 280G(b)(2) of the Code) Code (whether or not such payment is considered to be reasonable compensation for services rendered); or (iiiiv) result in the triggering or imposition of a requirement to pay any restrictions or limitations on the rights of the Acquired Companies to amend or terminate any Company Benefit Plan. No Company Benefit Plan provides, and no Acquired Company has any obligation to provide, a tax “gross-up” or similar “make-whole” payment payments to any current or former employee, officer, director, director or other service provider of any Acquired Company, and no such obligation will arise as a result of the execution and delivery of this Agreement or the consummation of the Contemplated Transactions (either alone or together with any other event) or otherwise.
(f) No Company Benefit Plan provides for, and none consultant of the Acquired Companies has any obligation to provide, any post-retirement or post-termination health, life insurance or other welfare benefits, except as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or similar state Law for which the individual pays for the full cost of coverage. Each Company Benefit Plan that is a health plan is in compliance in all material respects with the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, and the Acquired Companies have offered all full-time employees the ability to elect minimum essential coverage that provides minimum value for themselves and their dependents in accordance with such LawsCorporation.
(g) Each Company Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been operated and maintained in compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder and in compliance in all material respects with the terms of such Company Benefit Plan.
(h) No Company Benefit Plan is subject to any Laws other than those of the United States or any state, county, or municipality in the United States, nor is any Company Benefit Plan maintained for the benefit of employees, officers, directors, consultants or other service providers located outside of the United States. No Acquired Company contributes to or has any obligation to contribute to any scheme, plan or arrangement mandated by a government other than the United States federal government. Except as set forth on Section 3.12(h) of the Company Disclosure Schedule, there has been no amendment to, or written interpretation of or announcement by any Acquired Company relating to, or change in employee participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred in respect thereof for the most recent fiscal year ending prior to the Closing Date. For each Company Benefit Plan, all contributions, premiums and payments that have become due through the date hereof have been made within the time periods prescribed by the terms of such plan and applicable Laws.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Section 3.12(a3.16(a) of the Company Disclosure Schedule Letter sets forth an accurate a true and complete list of each material Company Benefit Plan. With respect to each material Company Benefit Plan, the Company has made available to Parent an accurate Employee Plan and complete copy of: separately identifies (i) each such plan documentthat is maintained primarily for the benefit of Company Associates in the United States (each, including a “U.S. Employee Plan”) and (ii) each such plan that is maintained primarily for the benefit of Company Associates outside the United States (each, an “International Employee Plan”), with the exception of any compulsory International Employee Plan implemented and managed by a Governmental Body. The Company has provided to Parent on or prior to the date of this Agreement with respect to each Employee Plan, to the extent applicable, a true and complete copy of the following: (A) all plan documents (or, with respect to any such unwritten Employee Plan, written descriptions thereof) and amendments thereto, and all related trusts; trust agreements, insurance contracts or other funding documents, (ii) the current summary plan description, including any material modifications; (iiiB) the most recent determination letter (or if applicable, advisory or opinion letterletter issued by the IRS or the United States Department of Labor (“DOL”), (C) the most recent audited financial statement, actuarial valuation and annual report, including Form Series 5500 and all schedules and financial statements attached thereto, (D) the most recent summary plan descriptions and any material modifications thereto, and (E) all non-routine correspondence to or from the IRS, if any, and any pending applications for a determination or opinion letter; and (iv) all material notices or other non-routine material written correspondence regarding such Company Benefit Plan between a plan fiduciary, any Acquired Companythe DOL, or any ERISA Affiliate and the IRS, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental EntityBody for the last three years.
(b) None of the Acquired Companies Entities nor any of their ERISA Affiliate thereof sponsors, maintains or contributes or is obligated to contribute to, or has Affiliates have ever sponsored, maintained, contributed or been obligated to contribute to, or incurred any liability with respect to: maintained a U.S. Employee Plan that (i) any plan is or was subject to Title IV of ERISA or ERISA, Section 412 of the Code, Code or Section 302 of ERISA or (ii) any is or was a “multiemployer plan” within the meaning of as defined in Section 4001(a)(3) or 3(37) of ERISA, (iii) any “multiple employer plan” within the meaning of Section 4063 or 4064 of ERISA, (iv) any “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA or (v) any health or other welfare arrangement that is self-insured. No Company Benefit Plan is or has ever been, or currently funds or has ever been funded by, a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) None of the Code or other funding arrangement for the provision of welfare benefitsAcquired Entities have any unfunded liability with respect to any International Employee Plan.
(c) Each Company Benefit Plan of the U.S. Employee Plans that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or is entitled to rely upon a favorable determination or on an opinion letter from issued to a pre-approved plan, if applicable) as to its qualified status under the IRSCode, and nothing has occurred that would be reasonably expected to result in the loss of such qualification or exemption or materially increase the costs relating thereto or require posting of security under ERISA. To the Knowledge of the CompanyAll International Employee Plans required to have been approved by and/or filed with any Governmental Body have been so filed with and/or approved, no event such approval has been revoked (or, to the knowledge of any Acquired Entity, has revocation been threatened) and nothing has occurred and no condition, facts or circumstances exist that would reasonably be expected to cause result in the loss revocation of such qualification approval, or challenge the imposition of material liability, penalty or Tax under ERISA, the Code or other applicable Laws. All assets validity of the Company Benefit Plans consist plan or materially increase the costs relating to such plan or require posting of cash or actively traded securitiessecurity under applicable non-U.S. Law. No assets of any Company Benefit Plan consist of capital stock Each of the Company, other than with respect to Employee Plans is and for the Company Equity Plans and ESPP.
(d) (i) Each Company Benefit Plan last three years has been established, operated, administered and maintained operated in compliance in all material respects with its terms and with all applicable Law (including, in the requirements prescribed by applicable Lawscase of the U.S. Employee Plans, including ERISA and the Code; ). No litigation or governmental (iior any other relevant labor, social security, immigration or health and safety authorities) no litigation has commenced with respect to any Company Benefit Plan administrative proceeding, investigation, audit or other proceeding (other than those relating to routine claims for benefits) andis, to or during the Knowledge of the Companylast three years has been, no such litigation is threatened; (iii) there are no material governmental audits or investigations pending or, to the Knowledge knowledge of any Acquired Entity, threatened in writing with respect to any Employee Plan, and, to the knowledge of any Acquired Entity, there is no reasonable basis for any such litigation or proceeding. Except as set forth in Section 3.16(c) of the Company Disclosure Letter, all payments and/or contributions required to have been made with respect to all Employee Plans either have been timely made or accrued in accordance with the terms of the applicable Employee Plan and applicable Law.
(d) No Acquired Entity, Company Associate or, to the knowledge of the Company, threatened any trustee, administrator or other third-party fiduciary and/or party-in-interest thereof, has engaged in connection with any Company Benefit Plan; and breach of fiduciary responsibility or any “prohibited transaction” (ivas such term is defined in Section 406 of ERISA or Section 4975 of the Code) to the Knowledge which Section 406 of ERISA or Section 4975 of the CompanyCode applies and which could subject any Acquired Entity or any of their ERISA Affiliates, there are no facts or circumstances that reasonably would be expected to give rise to any litigation, audits, investigations, actions, or claims against any Company Benefit Plan, any fiduciary with respect to a Company Benefit Plan or the assets of a Company Benefit Plan. Except as would not reasonably be expected to be material to the Acquired Companies, (i) none of the Acquired Companies have engaged in any non-exempt a material tax or penalty on prohibited transaction (within the meaning of transactions imposed by Section 4975 of the Code or Section 406 of ERISA) and, to the Knowledge of the Company, no such prohibited transaction has occurred with respect to any Company Benefit Plan and (ii) no liability to indemnify any trustee, administrator or other third-party fiduciary (within the meaning of and/or party-in-interest thereof for any tax or penalty on prohibited transactions imposed by Section 3(21) of ERISA) that is an Acquired Company or a committee or employee of an Acquired Company, and, to the Knowledge 4975 of the Company, no fiduciary who is not an Acquired Company or a committee or employee of an Acquired Company, has breached such fiduciary’s fiduciary duty under ERISA with respect to a Company Benefit Plan or otherwise has any liability in connection with any acts taken (or failed to be taken) with respect to the administration or investment of the assets of any Company Benefit PlanCode.
(e) None of the Employee Plans provide health care or any other non-pension benefits to any Company Associates after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA or similar U.S. state law or other applicable foreign Law) and the Company has never promised to provide such post-termination benefits, unless required by applicable French Nationwide Collective Bargaining Agreement (“Convention Collective de Branche”) or applicable Law.
(f) With respect to each U.S. Employee Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(l) of the Code), (i) such plan has been operated in all material respects in good faith compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder to the extent such plan is subject to Section 409A of the Code and so as to avoid any Tax, interest or penalty thereunder and (ii) the document or documents that evidence each such plan have complied with the provisions of Section 409A of the Code and the final regulations under Section 409A of the Code in all material respects since January 1, 2009. No payments on account of the transactions contemplated by this Agreement would cause any liability to an Acquired Entity under Section 409A of the Code.
(g) Except as provided in set forth on Section 2.43.16(g) of the Company Disclosure Letter, neither the execution and delivery of this Agreement Agreement, the shareholder approval of this Agreement, nor the consummation of the Contemplated Transactions will transactions contemplated hereby could (either alone or together in conjunction with any other event) (i) result in, or cause the accelerated vesting, vesting payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any current Company Associate, or former employee, officer, director or trigger any other service provider material liability under any Employee Plan; (ii) limit the right of any Acquired CompanyEntity to amend, merge or terminate, or result in a violation or default under, any Employee Plan or related trust; (iiiii) result in any “parachute payment” (as defined in Section 280G(b)(2) of the Code) Code (whether or not such payment is considered to be reasonable compensation for services rendered); or (iiiiv) result in the triggering or imposition of a requirement to pay any restrictions or limitations on the rights of the Acquired Companies to amend or terminate any Company Benefit Plan. No Company Benefit Plan provides, and no Acquired Company has any obligation to provide, a tax “gross-up” or similar “make-whole” payment payments to any current or former employee, officer, director, or other service provider of any Acquired Company, and no such obligation will arise as a result Company Associate. With respect to each “disqualified individual” of the execution and delivery of this Agreement or the consummation of the Contemplated Transactions (either alone or together with any other event) or otherwise.
(f) No Company Benefit Plan provides for, and none of the Acquired Companies has any obligation to provide, any post-retirement or post-termination health, life insurance or other welfare benefits, except as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or similar state Law for which the individual pays for the full cost of coverage. Each Company Benefit Plan that is a health plan is in compliance in all material respects with the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, and the Acquired Companies have offered all full-time employees the ability to elect minimum essential coverage that provides minimum value for themselves and their dependents in accordance with such Laws.
(g) Each Company Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Treasury Regulations Section 409A(d)(11.280G-1), the Company has made available to Parent (A) a schedule that sets forth (1) the Company’s reasonable, good faith estimate of all payments or benefits (including any accelerated vesting) that could be provided to such disqualified individual as a result of any of the transactions contemplated by this Agreement (alone or in combination with any other event), and (2) the “base amount” (as defined in Section 280G(b)(3) of the Code) for each such individual, and (B) the underlying data and documentation on which such schedule is based.
(h) For each U.S. Employee Plan with respect to which a Form 5500 has been filed, no material change has occurred with respect to the matters covered by the most recent Form since the date of such Form. No Acquired Entity has any plan, contract or commitment, whether legally binding or not, or has announced (orally or in writing) an intention, to create any additional employee benefit or compensation plans, policies or arrangements or except as may be required by applicable Law, to modify, suspend or terminate any Employee Plan. No U.S. Employee Plan which is subject to Title IV of ERISA or related trust has been terminated, nor has there been any “reportable event” (as that term is defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived with respect to any Employee Plan during the last five years, and no notice of a reportable event will be required to be filed in connection with the transactions contemplated by this Agreement.
(i) Each compensatory grant of an equity interest in the Company complies with all applicable securities Laws, including state securities Laws. No deduction by the Company or any Acquired Entity in respect of any “applicable employee remuneration” (within the meaning of Section 162(m) of the Code) has been operated and maintained in compliance with the requirements disallowed or is subject to disallowance by reason of Section 409A 162(m) of the Code and applicable guidance issued thereunder and in compliance in all material respects with the terms of such Company Benefit PlanCode.
(hj) No Neither the Company Benefit Plan is subject to nor any Laws other than those Acquired Entity has any material liability or obligations, under or an account of any Employee Plan, arising out of the United States hiring of persons to provide services to the Company or any state, county, or municipality in the United States, nor is any Company Benefit Plan maintained for the benefit of employees, officers, directors, Acquired Entity and treating such persons as consultants or other service providers located outside of the United States. No Acquired Company contributes to or has any obligation to contribute to any scheme, plan or arrangement mandated by a government other than the United States federal government. Except independent contractors and not as set forth on Section 3.12(h) employees of the Company Disclosure Schedule, there has been no amendment to, or written interpretation of or announcement by any Acquired Company relating to, or change in employee participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred in respect thereof for the most recent fiscal year ending prior to the Closing Date. For each Company Benefit Plan, all contributions, premiums and payments that have become due through the date hereof have been made within the time periods prescribed by the terms of such plan and applicable LawsEntity.
Appears in 1 contract
Samples: Merger Agreement (Envivio Inc)
Employee Matters; Benefit Plans. (a) Section 3.12(aPart 3.15(a) of the Company Disclosure Schedule sets forth an accurate a true and complete list of each material Company Benefit Employee Plan and separately identifies each material International Employee Plan. With respect to each material Company Benefit Plan, the The Company has made available to Parent an or Parent’s Representatives with respect to each material U.S. Employee Plan (excluding any “multiemployer plan” as defined in Section 3(37) of ERISA (a “Multiemployer Plan”)), to the extent applicable, accurate and complete copy copies of: (iA) each the plan document, including document and all amendments thereto, and all related trusts; (ii) the current summary plan description, including any material modifications; (iiiB) the most recent determination letter (or if applicable, advisory or opinion letterletter issued by the IRS or the United States Department of Labor (“DOL”), (C) the most recently prepared actuarial valuation or annual report, (D) the most recent summary plan description and summaries of material modifications and (E) all material correspondence to or from the IRS, if any, and any pending applications for a determination or opinion letter; and (iv) all material notices or other non-routine material written correspondence regarding such Company Benefit Plan between a plan fiduciary, any Acquired Companythe DOL, or any ERISA Affiliate and the IRS, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental EntityBody for the last three (3) years.
(b) None of the Acquired Companies nor With respect to any ERISA Affiliate thereof sponsors, maintains or contributes or U.S. Employee Plan that is obligated to contribute to, or has ever sponsored, maintained, contributed or been obligated to contribute to, or incurred any liability with respect to: (i) any plan subject to funding requirements of Title IV of ERISA or Section 412 of the CodeCode (other than a Multiemployer Plan), (i) none of the Acquired Corporations has incurred any material liability under subtitles C or D of Title IV of ERISA within the past six (6) years, (ii) any there has been no “multiemployer planreportable event” within the meaning of Section 4001(a)(34043 of ERISA (excluding any such event for which the thirty (30) or 3(37) day notice requirement has been waived under the regulations to Section 4043 of ERISA), (iii) any no such U.S. Employee Plan is in “multiple employer planat risk” status within the meaning of Section 303 of ERISA and (iv) no event described in Section 4062, 4063 or 4064 of ERISA, (iv) any “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA or (v) any health or other welfare arrangement that is self-insured. No Company Benefit Plan is or has ever been, or currently funds or has ever been funded by, a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code or other funding arrangement for the provision of welfare benefitsoccurred.
(c) Each Except as would not reasonably be expected to have, individually or in the aggregate, a Company Benefit Plan Material Adverse Effect, since October 1, 2016, none of the Acquired Corporations nor any of their respective current or former ERISA Affiliates has (i) incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, (ii) engaged in a transaction that is subject to Section 4069 of ERISA or (iii) is or has been a participating employer in any multiple employer plan, as defined in Section 413(c) of the Code, or any multiple employer welfare arrangement, as defined in Section 3(40) of ERISA.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each of the U.S. Employee Plans (other than a Multiemployer Plan) that is intended to be qualified under Section 401(a) of the Code is entitled to rely upon has obtained a favorable determination letter (or opinion letter from letter, if applicable) as to its qualified status under the IRS. To Code and, to the Knowledge knowledge of the Company, no event nothing has occurred and no condition, facts or circumstances exist that would be reasonably be expected to cause result in the loss of such qualification or the imposition of material liabilityqualification, penalty or Tax under ERISA, the Code or other applicable Laws. All assets (ii) each of the Company Benefit U.S. Employee Plans consist of cash or actively traded securities. No assets of any Company Benefit Plan consist of capital stock of the Company, (other than with respect to the Company Equity Plans a Multiemployer Plan) is, and ESPP.
(d) (i) Each Company Benefit Plan has since October 1, 2016 been established, operated, administered and maintained in compliance in all material respects with its terms and with the requirements prescribed by all applicable LawsLaw, including ERISA and the Code; , (iiiii) there are no litigation has commenced with respect to any Company Benefit Plan or governmental administrative proceedings, audits or other proceedings or claims (other than routine claims for benefits) and, to the Knowledge of the Company, no such litigation is threatened; (iii) there are no material governmental audits or investigations pending or, to the Knowledge knowledge of the Company, threatened in connection with respect to any Company Benefit U.S. Employee Plan (other than a Multiemployer Plan; ) and (iv) all payments and/or contributions payable by any of the Acquired Corporations with respect to all U.S. Employee Plans either have been made or accrued in accordance with GAAP.
(e) To the Knowledge knowledge of the Company, there are no facts none of the Acquired Corporations has engaged in any breach of fiduciary responsibility or circumstances that any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) which would reasonably would be expected to give rise subject any of the Acquired Corporations to either a material tax or penalty on prohibited transactions imposed by Section 4975 of the Code or to any litigation, audits, investigations, actions, material liability under Section 502 of ERISA.
(f) Except as required by applicable Law or claims against any Company Benefit Plan, any fiduciary with respect pursuant to a Company Benefit collective bargaining agreement, no Employee Plan provides retiree or the assets of a Company Benefit Plan. post-employment medical, disability, life insurance or welfare benefits to any Person.
(g) Except as would not reasonably be expected to be material to have, individually or in the Acquired Companiesaggregate, a Company Material Adverse Effect, (i) none of the Acquired Companies have engaged each International Employee Plan is in any non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) compliance with its terms and applicable local Law and, to the Knowledge knowledge of the Company, no all such prohibited transaction has occurred with respect plans that are required to any Company Benefit Plan be funded or book-reserved are funded or book-reserved, as appropriate, based upon reasonable actuarial assumptions and applicable Law and (ii) as of the date of this Agreement, there is no fiduciary (within the meaning of Section 3(21) of ERISA) that is an Acquired Company or a committee or employee of an Acquired Company, andpending or, to the Knowledge knowledge of the Company, no fiduciary who is not an Acquired Company or a committee or employee of an Acquired Company, has breached such fiduciary’s fiduciary duty under ERISA with respect threatened material litigation relating to a Company Benefit Plan or otherwise has any liability in connection with any acts taken (or failed to be taken) with respect to the administration or investment of the assets of any Company Benefit International Employee Plan.
(eh) Except as provided in Section 2.4, neither Neither the execution and delivery of this Agreement Agreement, the Company Stockholder Approval of this Agreement, nor the consummation of the Contemplated Transactions will transactions contemplated hereby could (either alone or together in conjunction with any other event) ), (i) result in, or cause accelerate the accelerated vestingtime of, vesting or payment, funding or delivery of, or materially increase the amount or value of, any payment or benefit to any current or former employee, officer, director or other service provider of any of the Acquired Company, Corporations; (ii) result in limit the right of any “parachute payment” (as defined in Section 280G(b)(2) of the Code) Acquired Corporations to amend, merge or terminate any Employee Plan or related trust on or following the Effective Time or (iii) result in the triggering or imposition payment of any restrictions amount that could, individually or limitations on the rights of the Acquired Companies to amend or terminate any Company Benefit Plan. No Company Benefit Plan provides, and no Acquired Company has any obligation to provide, a tax “gross-up” or similar “make-whole” payment to any current or former employee, officer, director, or other service provider of any Acquired Company, and no such obligation will arise as a result of the execution and delivery of this Agreement or the consummation of the Contemplated Transactions (either alone or together in combination with any other event) or otherwise.
(f) No Company Benefit Plan provides forsuch payment, and none of the Acquired Companies has any obligation to provide, any post-retirement or post-termination health, life insurance or other welfare benefits, except constitute an “excess parachute payment” as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or similar state Law for which the individual pays for the full cost of coverage. Each Company Benefit Plan that is a health plan is in compliance in all material respects with the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, and the Acquired Companies have offered all full-time employees the ability to elect minimum essential coverage that provides minimum value for themselves and their dependents in accordance with such Laws.
(g) Each Company Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) 280G of the Code) has been operated and maintained in compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder and in compliance in all material respects with the terms of such Company Benefit Plan.
(h) No Company Benefit Plan is subject to any Laws other than those of the United States or any state, county, or municipality in the United States, nor is any Company Benefit Plan maintained for the benefit of employees, officers, directors, consultants or other service providers located outside of the United States. No Acquired Company contributes to or has any obligation to contribute to any scheme, plan or arrangement mandated by a government other than the United States federal government. Except as set forth on Section 3.12(h) of the Company Disclosure Schedule, there has been no amendment to, or written interpretation of or announcement by any Acquired Company relating to, or change in employee participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred in respect thereof for the most recent fiscal year ending prior to the Closing Date. For each Company Benefit Plan, all contributions, premiums and payments that have become due through the date hereof have been made within the time periods prescribed by the terms of such plan and applicable Laws.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Section 3.12(aPart 3.14(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each material Employee Plan that is sponsored or maintained by the Company Benefit Plan. With or any ERISA Affiliate or with respect to each material which the Company Benefit or any ERISA Affiliate has or may have any liability (each, a “Company Employee Plan, the ”). The Company has made available to Parent an accurate and complete copy ofor Parent’s Representatives on or prior to the date of this Agreement with respect to each Company Employee Plan, to the extent applicable: (iA) each all plan document, including all documents and amendments thereto, and all related trusts; trust agreements, insurance contracts or other funding documents (ii) the current summary plan descriptionincluding a written description of such plan, including any material modifications; if unwritten), (iiiB) the most recent determination letter (or if applicable, advisory or opinion letterletter issued by the IRS or the United States Department of Labor (“DOL”), (C) the most recent actuarial valuation or annual report (Form Series 5500 and all schedules and financial statements attached thereto), (D) the most recent summary plan descriptions and any material modifications thereto, and (E) all material correspondence to or from the IRS, if any, and any pending applications for a determination or opinion letter; and (iv) all material notices or other non-routine material written correspondence regarding such Company Benefit Plan between a plan fiduciary, any Acquired Companythe DOL, or any ERISA Affiliate and the IRS, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental EntityBody for the last three years.
(b) None No Company Employee Plan is a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which the Company or any ERISA Affiliate could incur liability under Section 4063 or 4064 of ERISA or a plan maintained by more than one employer as described in Section 413(c) of the Acquired Companies Code.
(c) Neither the Company nor any ERISA Affiliate thereof sponsors, maintains or contributes or is obligated to contribute to, or has ever sponsored, maintained, contributed maintained any Company Employee Plan that is or been obligated to contribute to, or incurred any liability with respect to: (i) any plan was subject to Title IV of ERISA or ERISA, Section 412 of the Code, (ii) any Section 302 of ERISA or is a “multiemployer plan” (within the meaning of Section 4001(a)(3Sections 3(37) or 3(374001(a)(3) of ERISA, (iii) and neither the Company nor any “multiple employer plan” within the meaning of Section 4063 or 4064 of ERISA, (iv) ERISA Affiliate has incurred any “multiple employer welfare arrangement” within the meaning of Section 3(40) liability under Title IV of ERISA or (v) any health or other welfare arrangement that is self-insured. No Company Benefit Plan is or has ever been, or currently funds or has ever not been funded by, a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code or other funding arrangement for the provision of welfare benefitspaid in full.
(cd) Each of the Company Benefit Plan Employee Plans that is intended to be qualified under Section 401(a) of the Code is entitled to rely upon has obtained a favorable determination letter (or opinion letter from the IRS. To the Knowledge of the Companyletter, no event has occurred and no condition, facts or circumstances exist that would reasonably be expected if applicable) as to cause the loss of such qualification or the imposition of material liability, penalty or Tax its qualified status under ERISA, the Code or other applicable Laws. All assets of the Company Benefit Plans consist of cash or actively traded securities. No assets of any Company Benefit Plan consist of capital stock of the Company, other than with respect to the Company Equity Plans and ESPP.
(d) (i) Each Company Benefit Plan has been established, operated, administered and maintained in compliance in all material respects with its terms and with the requirements prescribed by applicable Laws, including ERISA and the Code; (ii) no litigation has commenced with respect to any Company Benefit Plan (other than routine claims for benefits) and, to the Knowledge of the Company, nothing has occurred that would be reasonably expected to result in the loss of such qualification or exemption. Each of the Company Employee Plans is and has been operated in all material respects in compliance with its terms and all applicable Law, including ERISA and the Code, except where the failure to operate such Company Employee Plans in accordance with their terms and applicable Law did not and could not, individually or in the aggregate, result in any material liability to the Acquired Corporations. For the last three years, no such litigation or governmental administrative proceeding, audit or other Legal Proceeding (other than those relating to routine claims for benefits) is threatened; (iii) there are no material governmental audits or investigations pending or, to the Knowledge of the CompanyAcquired Corporations, threatened in connection with any Company Benefit Plan; and (iv) to the Knowledge of the Company, there are no facts or circumstances that reasonably would be expected to give rise to any litigation, audits, investigations, actions, or claims against any Company Benefit Plan, any fiduciary with respect to a Company Benefit Plan or the assets of a Company Benefit Plan. Except as would not reasonably be expected to be material to the Acquired Companies, (i) none of the Acquired Companies have engaged in any non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) and, to the Knowledge of the Company, no such prohibited transaction has occurred writing with respect to any Company Benefit Plan and (ii) no fiduciary (within the meaning of Section 3(21) of ERISA) that is an Acquired Company or a committee or employee of an Acquired CompanyEmployee Plan, and, to the Knowledge of the CompanyAcquired Corporation, there is no fiduciary who is reasonable basis for any such litigation or Legal Proceeding, except as would not result in any material liability to any Acquired Corporation. All payments and/or contributions required to have been made by an Acquired Company or a committee or employee of an Acquired Company, has breached such fiduciary’s fiduciary duty under ERISA Corporation with respect to a all Company Benefit Plan Employee Plans either have been made or otherwise has any liability have been accrued in connection accordance with any acts taken (or failed to be taken) with respect to the administration or investment terms of the assets of applicable Company Employee Plan and applicable Law, except as would not result in any Company Benefit Planmaterial liability to any Acquired Corporation.
(e) None of the Company Employee Plans provide health care or any other non-pension benefits to any Company Associates after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA or similar state law) and the Company has never promised to provide such post-termination benefits except pursuant to executive employment agreements.
(f) No Acquired Corporation has announced its intention to modify or terminate any Company Employee Plan or adopt any arrangement or program which, once established, would come within the definition of a Company Employee Plan.
(g) The per share exercise price of each Company Option is no less than the fair market value of a Share on the date of grant of such Company Option (and as of each later modification thereof within the meaning of Section 409A of the Code) determined in a manner consistent with Section 409A of the Code. With respect to each Company Employee Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the Code), (i) such plan has been operated in accordance with a good faith, reasonable interpretation of Section 409A of the Code, (ii) such plan has been operated in all material respects since January 1, 2009 in accordance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder to the extent such plan is subject to Section 409A of the Code and so as to avoid any Tax, interest or penalty thereunder and (iii) the document or documents that evidence each such plan have complied with the provisions of Section 409A of the Code and the final regulations under Section 409A of the Code in all material respects since January 1, 2009. No payments on account of the Contemplated Transactions would cause any material liability to an Acquired Corporation under Section 409A of the Code.
(h) Except as provided set forth in Section 2.4Part 3.14(h) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the Contemplated Transactions will could (either alone or together in conjunction with any other event) (i) result in, or cause the accelerated vesting, vesting payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former employee, officer, director or other service provider of any the Acquired Company, Corporation; (ii) limit the right of the Acquired Corporation to amend, merge or terminate any Company Employee Plan or related trust; (iii) result in any “parachute payment” (as defined in Section 280G(b)(2) of the Code) Code (whether or not such payment is considered to be reasonable compensation for services rendered); or (iiiiv) result in the triggering or imposition of a requirement to pay any restrictions or limitations on the rights of the Acquired Companies to amend or terminate any Company Benefit Plan. No Company Benefit Plan provides, and no Acquired Company has any obligation to provide, a tax “gross-up” or similar “make-whole” payment payments to any current or former employee, officer, director, director or other service provider of any Acquired Company, and no such obligation will arise as a result of the execution and delivery of this Agreement or the consummation of the Contemplated Transactions (either alone or together with any other event) or otherwise.
(f) No Company Benefit Plan provides for, and none consultant of the Acquired Companies has any obligation to provide, any post-retirement or post-termination health, life insurance or other welfare benefits, except as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or similar state Law for which the individual pays for the full cost of coverage. Each Company Benefit Plan that is a health plan is in compliance in all material respects with the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, and the Acquired Companies have offered all full-time employees the ability to elect minimum essential coverage that provides minimum value for themselves and their dependents in accordance with such LawsCorporation.
(g) Each Company Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been operated and maintained in compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder and in compliance in all material respects with the terms of such Company Benefit Plan.
(h) No Company Benefit Plan is subject to any Laws other than those of the United States or any state, county, or municipality in the United States, nor is any Company Benefit Plan maintained for the benefit of employees, officers, directors, consultants or other service providers located outside of the United States. No Acquired Company contributes to or has any obligation to contribute to any scheme, plan or arrangement mandated by a government other than the United States federal government. Except as set forth on Section 3.12(h) of the Company Disclosure Schedule, there has been no amendment to, or written interpretation of or announcement by any Acquired Company relating to, or change in employee participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred in respect thereof for the most recent fiscal year ending prior to the Closing Date. For each Company Benefit Plan, all contributions, premiums and payments that have become due through the date hereof have been made within the time periods prescribed by the terms of such plan and applicable Laws.
Appears in 1 contract
Employee Matters; Benefit Plans. (a) Section 3.12(a4.17(a) of the Company Disclosure Schedule Letter sets forth all of the employees and individual independent contractors of the Company, including for each such individual, as applicable: name, job title, Fair Labor Standards Act designation, work location (identified by street address), current salary or wage rate, all wage arrangements, fringe benefits (other than employee benefits applicable to all employees under a Company Benefit Plan), accrued vacation or other time off and visa and green card application status. To the Knowledge of the Company, no current employee of the Company or the Company Subsidiary has given notice of termination of employment or otherwise disclosed to the Company or the Company Subsidiary plans in writing to terminate employment with the Company or the Company Subsidiary within the next twelve (12) months.
(b) Neither the Company nor the Company Subsidiary is a party or otherwise subject to, 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 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 or the Company Subsidiary.
(c) Section 4.17(c) of the Company Disclosure Letter sets forth an accurate and complete list of each material the Company Benefit Plan. With respect to each material Company Benefit PlanPlans.
(d) Neither the Company, the Company Subsidiary nor any other Person that would be or, at any relevant time, would have been considered a single employer with the Company pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA (each, an “ERISA Affiliate”) has made available ever maintained, contributed to, or been required to Parent an accurate and complete copy of: contribute to (i) each plan document, including all amendments thereto, and all related trusts; (ii) the current summary plan description, including any material modifications; (iii) the most recent determination letter (or if applicable, advisory or opinion letter) from the IRS, if any, and any pending applications for a determination or opinion letter; and (iv) all material notices or other non-routine material written correspondence regarding such Company Benefit Plan between a plan fiduciary, any Acquired Company, or any ERISA Affiliate and the IRS, Department of Labor, Pension Benefit Guarantee Corporation, or other Governmental Entity.
(b) None of the Acquired Companies nor any ERISA Affiliate thereof sponsors, maintains or contributes or is obligated to contribute to, or has ever sponsored, maintained, contributed or been obligated to contribute to, or incurred any liability with respect to: (i) any plan subject to Title IV of ERISA or Code Section 412 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of the CodeERISA, (ii) any “multiemployer plan” within the meaning of Section 4001(a)(3) or 3(37) of ERISA, (iii) any “multiple employer plan” within the meaning of Section 4063 or 4064 of ERISA, (iv) any a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA ERISA, or (viii) any health or other welfare arrangement that is self-insured. No Company Benefit Plan is or has ever been, or currently funds or has ever been funded by, a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code or other funding arrangement for the provision of welfare benefits.
benefits (c) such disclosure to include the amount of any such funding). Each Company Benefit Plan intended that provides health, life or other welfare or welfare-type benefits is fully insured by a third party insurance company. Except where a failure to do so would not be qualified under Section 401(a) reasonably likely to have a Material Adverse Effect, each Company Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of the Code is entitled to rely upon a favorable determination or opinion letter from the IRS. To the Knowledge of the Company, no event has occurred and no condition, facts or circumstances exist that would reasonably be expected to cause the loss of such qualification or the imposition of material liability, penalty or Tax under ERISA, the Code or and other applicable Laws.
(e) Except to the extent required under Section 601 et seq. All assets of ERISA or 4980B of the Code (or any other similar state or local Law), neither the Company, the Company Subsidiary nor any Company Benefit 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 the Company Subsidiary pursuant to any post-termination or retiree medical benefit plan or other post-termination or retiree welfare plan.
(f) Except as provided in Section 4.17(f) of the Company Disclosure Letter, the consummation of the Transactions (including in combination with other events or circumstances) will not (i) entitle any current or former employee, director, officer, independent contractor or other service provider of the Company or the Company Subsidiary to severance pay, unemployment compensation or any other material 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 Company or the Company Subsidiary to transfer or set aside any material assets to fund any benefits under any Company Benefit Plans consist of cash Plan, (iv) otherwise give rise to any material liability under any Company Benefit Plan (v) limit or actively traded securities. No restrict the right to amend, terminate or transfer any material assets of any Company Benefit Plan consist of capital stock of on or following the Company, other than with respect to the Company Equity Plans and ESPP.
(d) (i) Each Company Benefit Plan has been established, operated, administered and maintained in compliance in all material respects with its terms and with the requirements prescribed by applicable Laws, including ERISA and the Code; (ii) no litigation has commenced with respect to any Company Benefit Plan (other than routine claims for benefits) and, to the Knowledge of the Company, no such litigation is threatened; (iii) there are no material governmental audits or investigations pending or, to the Knowledge of the Company, threatened in connection with any Company Benefit Plan; and (iv) to the Knowledge of the Company, there are no facts or circumstances that reasonably would be expected to give rise to any litigation, audits, investigations, actionsEffective Time, or claims against any Company Benefit Plan, any fiduciary with respect to a Company Benefit Plan or (vi) result in the assets of a Company Benefit Plan. Except as would not reasonably be expected to be material to the Acquired Companies, (i) none of the Acquired Companies have engaged in any non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) and, to the Knowledge of the Company, no such prohibited transaction has occurred with respect to any Company Benefit Plan and (ii) no fiduciary (within the meaning of Section 3(21) of ERISA) that is an Acquired Company or a committee or employee of an Acquired Company, and, to the Knowledge of the Company, no fiduciary who is not an Acquired Company or a committee or employee of an Acquired Company, has breached such fiduciary’s fiduciary duty under ERISA with respect to a Company Benefit Plan or otherwise has any liability in connection with any acts taken (or failed to be taken) with respect to the administration or investment of the assets payment of any Company Benefit Plan.
(e) Except as provided amount that could, individually or in Section 2.4, neither the execution and delivery of this Agreement nor the consummation of the Contemplated Transactions will (either alone or together combination with any other event) (i) result in, or cause the accelerated vesting, such payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former employee, officer, director or other service provider of any Acquired Company, (ii) result in any constitute an “excess parachute payment,” (as defined in Section 280G(b)(2280G(b)(1) of the Code) or (iii) result in the triggering or imposition of any restrictions or limitations on the rights of the Acquired Companies to amend or terminate any Company Benefit Plan. No Company Benefit Plan provides, and no Acquired Company has any obligation to provide, a tax “gross-up” or similar “make-whole” payment to any current or former employee, officer, director, or other service provider of any Acquired Company, and no such obligation will arise as a result of the execution and delivery of this Agreement or the consummation of the Contemplated Transactions (either alone or together with any other event) or otherwise.
(f) No Company Benefit Plan provides for, and none of the Acquired Companies has any obligation to provide, any post-retirement or post-termination health, life insurance or other welfare benefits, except as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or similar state Law for which the individual pays for the full cost of coverage. Each Company Benefit Plan that is a health plan is in compliance in all material respects with the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, and the Acquired Companies have offered all full-time employees the ability to elect minimum essential coverage that provides minimum value for themselves and their dependents in accordance with such Laws.
(g) Each The Company Benefit has made available to Parent or its Representatives copies of the Company Equity Plan that is a “non-qualified deferred compensation plan” (covering the Company Options outstanding as of the date of this Agreement and the forms of all stock option agreements evidencing such term is defined Company Options. The treatment of the Company Options as described in Section 409A(d)(12.07(a) does not violate the terms of the Code) has been operated and maintained in compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder and in compliance in all material respects with Company Equity Plan or any agreement governing the terms of such Company Benefit PlanOptions.
(h) No Company Benefit Plan is subject to Notwithstanding any Laws other than those provision of this Agreement, the United States or any state, county, or municipality representations and warranties contained in Section 4.17 constitute the United States, nor is any Company Benefit Plan maintained for the benefit of employees, officers, directors, consultants or other service providers located outside of the United States. No Acquired Company contributes to or has any obligation to contribute to any scheme, plan or arrangement mandated by a government other than the United States federal government. Except as set forth on Section 3.12(h) sole and exclusive representations and warranties of the Company Disclosure Schedule, there has been no amendment to, or written interpretation of or announcement by any Acquired and the Company Subsidiary relating to, or change in to ERISA and other Laws relating to employee participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred in respect thereof for the most recent fiscal year ending prior to the Closing Date. For each Company Benefit Plan, all contributions, premiums and payments that have become due through the date hereof have been made within the time periods prescribed by the terms of such plan and applicable Lawsbenefits matters.
Appears in 1 contract
