Common use of Employee Matters; Benefit Plans Clause in Contracts

Employee Matters; Benefit Plans. (a) Part 3.16(a) of the Company Disclosure Schedule sets forth a true and complete list of each material Employee Plan and separately identifies any such plan that is an International Employee Plan. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement with respect to each material Employee Plan that is a U.S. Employee Plan (excluding a Multiemployer Plan (as defined below)), to the extent applicable: (A) current and complete plan documents and all amendments thereto, and all related trust agreements, insurance contracts or other funding documents, (B) the most recent determination or opinion letter 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 summaries of material modifications, and (E) all material correspondence to or from the IRS, the DOL, or any other Governmental Body for the last three (3) years. (b) With respect to any U.S. Employee Plan that is subject to Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA but is not a “multiemployer plan” as defined in Section 3(37) of ERISA (a “Multiemployer Plan”), none of the following has occurred or existed, nor will any of the following occur or exist as a result of the transactions contemplated by this Agreement: (i) a failure to make on a timely basis any contribution (including, without limitation, any installment) required under Section 302 or 303 of ERISA or Section 412 of the Code; (ii) the filing of an application for a waiver described in Section 412(c) of the Code and Section 303 of ERISA; or (iii) a “reportable event” within the meaning of ERISA Section 4043. Except as set forth in Part 3.16(b) of the Company Disclosure Schedule, no such U.S. Employee Plan is in “at risk” status within the meaning of Section 303 of ERISA. None of the Acquired Corporations nor any of their ERISA Affiliates has incurred any outstanding liability under Section 4062, 4063 or 4064 of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA. (c) With respect to each U.S. Employee Plan that is a Multiemployer Plan, Part 3.16(c) of the Company Disclosure Schedule states the amount of estimated withdrawal liability or other termination liability that would be incurred by the Acquired Corporations or their ERISA Affiliates if there were a cessation of operations or of the obligation to contribute to such plan which constituted a complete withdrawal (as defined in Section 4203 of ERISA) from such Multiemployer Plan. During the last five years, except as set forth in Part 3.16(c) of the Company Disclosure Schedule, none of the Acquired Corporations nor any of their respective current or former ERISA Affiliates has (i) withdrawn from any Multiemployer Plan in a complete or partial withdrawal or (ii) engaged in a transaction that is subject to Section 4069 of ERISA. None of the Acquired Corporations nor any of their respective ERISA Affiliates is or has ever been a party to any multiple employer plan, as that term is defined in Section 413(c) of the Code or a multiple employer welfare arrangement as that term is defined in Section 3(40) of ERISA. (d) 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 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 would be reasonably expected to result in the loss of such qualification. Each of the U.S. Employee Plans (other than a Multiemployer Plan) is and has for the last three (3) years been operated in compliance with its terms and all applicable Law, including ERISA and the Code, except where the failure to operate such U.S. 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. There is no, nor has there been for the last three (3) years, any litigation or governmental administrative proceeding, audit or other proceeding or claim (other than routine claims for benefits) pending or, to the knowledge of the Acquired Corporations, threatened with respect to any U.S. Employee Plan (other than a Multiemployer Plan), and, to the knowledge of the Acquired Corporation, there is no reasonable basis for any such litigation, proceeding, audit or claim, except as would not individually or in the aggregate be reasonably likely to result in a Company Material Adverse Effect. All payments and/or contributions required to have been made by an Acquired Corporation with respect to all U.S. Employee Plans either have been made or have been accrued in accordance with the terms of the applicable U.S. Employee Plan and applicable Law. (e) To the knowledge of the Company, no Acquired Corporation, any U.S. Employee Plan (other than a Multiemployer Plan) nor any trustee, administrator or other third-party fiduciary and/or party-in-interest thereof, has engaged in any breach of fiduciary responsibility or any non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the Code applies and which would subject any Acquired Corporation or any of their ERISA Affiliates, such U.S. Employee Plan or trustee, administrator or other third-party fiduciary and/or party-in-interest thereof to a material tax or penalty on prohibited transactions imposed by Section 4975 of the Code or to any material liability under Section 502 of ERISA. (f) Except as set forth in Part 3.16(f) of the Company Disclosure Schedule, none of the U.S. Employee Plans (other than a Multiemployer Plan) provide health care or any other non-pension benefits to any Company Associates or former employees 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, except as set forth in Part 3.16(f) of the Company Disclosure Schedule, the Company has never promised to provide such post-termination benefits. (g) No Acquired Corporation has announced its intention or made any binding commitment to materially increase participation in or benefits or coverage under, or terminate, any U.S. Employee Plan or adopt any arrangement or program which, once established, would come within the definition of a U.S. Employee Plan. Except as set forth in Part 3.16(g) of the Company Disclosure Schedule, each of the Acquired Corporations has reserved, to the extent permitted by applicable Law, the right to amend, terminate or modify at any time all Employee Plans, except as limited by the terms of a collective bargaining agreement, and other than with respect to Employee Plans that are executive compensation contracts and other bi-lateral agreements or arrangements between an Acquired Corporation on the one hand and an individual on the other hand. (h) All International Employee Plans comply in all material respects with their terms and applicable local Law. As of the date of this Agreement, there is no pending or, to the knowledge of the Company, threatened litigation relating to any International Employee Plan. With respect to each International Employee Plan, except as would not reasonably be expected to result in material liability to an Acquired Corporation: (i) to the knowledge of the Company, all employer and employee contributions to each International Employee Plan required by Law or by the terms of such International Employee Plan have been made or, if applicable, accrued in accordance with normal accounting practices; (ii) to the knowledge of the Company, all International Employee Plans have been established, registered, administered, funded and invested in accordance with their terms, including the terms of the material documents that support such International Employee Plan, any applicable labor contract or similar arrangement and all requirements of applicable Law, (iii) each International Employee Plan required to be registered has been registered and has been maintained in good standing with the appropriate Governmental Body; (iv) to the extent any International Employee Plan is intended to qualify for special tax treatment, such International Employee Plan meets all requirements for such treatment; (v) to the knowledge of the Company, no event has occurred respecting any International Employee Plan that would entitle any person (without the consent of an Acquired Corporation) to wholly wind-up or terminate any International Employee Plan; (vi) none of the International Employee Plans provide for benefit increases or the acceleration of, or an increase in, funding obligations that are contingent upon, or will be triggered by, the completion of the transactions contemplated herein (except for employment agreements or other executive compensation contracts and other bilateral arrangements between an Acquired Corporation on the one hand and an individual on the other hand); (vii) there are no unfunded liabilities in respect of any International Employee Plan, including going concern unfunded liabilities, solvency deficiencies or wind-up deficiencies where applicable; (viii) none of the International Employee Plans provide benefits beyond retirement or other termination of service to employees or former employees or to the beneficiaries or dependents of such employees; and (ix) there is no proceeding, action, suit or claim (other than routine claims for payments of benefits) pending or to the knowledge of the Company, threatened involving any International Employee Plan or its assets. (i) 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 since January 1, 2005 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 material liability to an Acquired Corporation or any participant in such a plan under Section 409A of the Code. (j) Except as set forth in Part 3.16(j) of the Company Disclosure Schedule, neither the execution and delivery of this Agreement, the Stockholder Approval of this Agreement, nor the consummation of the transactions contemplated hereby could (either alone or in conjunction 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 Corporation; (ii) limit the right of any Acquired Corporation to amend, merge or terminate any U.S. Employee Plan or related trust; (iii) result in a requirement to pay any tax “gross-up” or similar “make-whole” payments to any current or former employee, director or consultant of any Acquired Corporation; or (iv) result in a requirement to make any payments that will not be deductible because of Section 280G of the Code. Except as set forth in Part 3.16(j) of the Company Disclosure Schedule, (A) during the past three (3) years, none of the Acquired Corporations has made any payments that were not or will not be deductible because of Section 162(m) of the Code and (B) none of the Acquired Corporations is, or at any time during the past three (3) years has been, party to a Contract or an Employee Plan (including this Agreement) that would obligate it to make payments (either before or after the Closing) that will not be deductible because of Section 162(m) of the Code.