Employee Matters; ERISA. (a) Section 4.13 of the Company Disclosure Schedule sets forth a list of each employee benefit plan, arrangement or agreement, including each employment, severance or similar agreement, that is maintained as of the date hereof (the "Plans") by the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate") which, together with the Company, would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), for the benefit of any current or former employee, officer, director or independent contractor of the Company and, prior to the date hereof, the Company has provided Acquisition Company or its representatives with a copy of each material Plan. (i) Each of the Plans has been operated and administered in compliance in all material respects with applicable law, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the "Code"), (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to such effect and the Company knows of no event that would cause the disqualification of any such Plan, (iii) no Plan is subject to Title IV of ERISA, (iv) other than the Company's retiree medical plan and retiree death benefit plan and the Alliance Tool Corporation health care plan, no Plan provides welfare benefits (whether or not insured) with respect to current or former employees of the Company beyond their retirement or other termination of service, other than coverage mandated by applicable law or benefits the full cost of which is borne by the current or former employee (or such employee's beneficiary), (v) no 20 30 liability under Title IV of ERISA or Section 412 of the Code has been incurred (directly or indirectly) in connection with any Plan that has not been satisfied in full, (vi) no Plan is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA, or a plan described in Section 4063 of ERISA, (vii) all contributions or other amounts payable by the Company or any ERISA Affiliate as of the Effective Time with respect to any Plan in respect of current or prior plan years which are required to be reflected in the Company's or the ERISA Affiliate's financial statements in accordance with GAAP have been paid or accrued in accordance with GAAP and Section 412 of the Code, (viii) neither the Company nor an ERISA Affiliate has engaged in a transaction in connection with which the Company, its Subsidiaries or any ERISA Affiliate would be subject to either a material civil penalty assessed pursuant to Sections 502(i) or 502(e) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code, and (ix) to the knowledge of the Company, there are no pending, threatened or anticipated material claims (other than routine claims for benefits) by, on behalf of or against any of the Plans or any trusts related thereto. (c) Except as provided pursuant to this Agreement and except with respect to the Plans set forth in Schedule 6.5(c) of the Company Disclosure Schedule, neither the execution, delivery and performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby shall (i) result in any material payment becoming due to any director or employee of the Company, (ii) materially increase any benefits otherwise payable under any Plan or (iii) result in any acceleration of the time of payment or vesting of any benefits under any Plan to any material extent. (d) The funded status as of December 31, 1998 of the retirement plans and the post-retiree medical liabilities of the Company and its Subsidiaries are correct in all material respects based on the assumptions disclosed in the Company's Form 10-K for the fiscal year ended December 31, 1998, and since December 31, 1998, there have been no material changes in or amendments to the Company's foreign defined benefit plans.
Appears in 1 contract
Employee Matters; ERISA. (a) Section 4.13 of the The Company Disclosure Schedule sets forth a list of each Letter lists all employee pension benefit plan, arrangement or agreement, including each employment, severance or similar agreement, that is maintained plans (as of the date hereof (the "Plans"defined in Section 3(2) by the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate") which, together with the Company, would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder ("ERISA")), for the all employee welfare benefit plans (as defined in Section 3(1) of any current ERISA), all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other or similar material fringe or employee benefit plans, programs or arrangements, all consulting agreements with former employee, officer, director or independent contractor officers and directors of the Company andand all employment, termination, change-in-control or severance agreements, in each case, pursuant to which the Company or any of its Subsidiaries may have any liability that is material to the Company and its Subsidiaries, taken as a whole (together, the "Company Employee Plans"), excluding, however, employee benefit plans that are primarily subject to the laws of any jurisdiction outside of the United States.
(b) Except as disclosed in the Company SEC Reports filed prior to the date of this Agreement, no material liability under Title IV of ERISA has been or is reasonably expected to be incurred by the Company or any Subsidiary of the Company or any entity which is considered a single employer with the Company or any Subsidiary of the Company under Section 4001(a)(15) of ERISA or Section 414 of the A-19 21 Code (a "Company ERISA Affiliate"), other than liabilities for premium payments to the Pension Benefit Guaranty Corporation ("PBGC") and liabilities that have previously been satisfied.
(c) Except as disclosed in the Company SEC Reports filed prior to the date hereof, none of the Company has provided Acquisition Company Employee Plans promises or its representatives with a copy of each material Plan.
(i) Each of the Plans has been operated and administered in compliance in all material respects with applicable lawprovides retiree medical or other retiree welfare benefits to any person, including but not limited to ERISA and the Internal Revenue Code of 1986, other than health continuation coverage as amended (the "Code"), (ii) each of the Plans intended to be "qualified" within the meaning of required by Section 401(a) 4980B of the Code has received a favorable determination letter from the Internal Revenue Service to such effect and the Company knows or Part 6 of no event that would cause the disqualification of any such Plan, (iii) no Plan is subject to Title IV I of ERISA, (iv) other than the Company's retiree medical plan and retiree death benefit plan and the Alliance Tool Corporation health care plan, no Plan provides welfare benefits (whether or not insured) with respect to current or former employees none of the Company beyond their retirement or other termination of service, other than coverage mandated by applicable law or benefits the full cost of which is borne by the current or former employee (or such employee's beneficiary), (v) no 20 30 liability under Title IV of ERISA or Section 412 of the Code has been incurred (directly or indirectly) in connection with any Plan that has not been satisfied in full, (vi) no Plan Employee Plans is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA. Except as set forth in the Company SEC Reports filed prior to the date of this Agreement and except, in the aggregate, as would not have, or reasonably be expected to have, a plan described Company Material Adverse Effect, (i) no party in interest or disqualified person (as defined in Section 4063 3(14) of ERISA, (viiERISA and Section 4975 of the Code) all contributions or other amounts payable by has at any time engaged in a transaction with respect to any Company Employee Plan which could subject the Company or any Company ERISA Affiliate as Affiliate, directly or indirectly, to any tax, penalty or other liability for prohibited transactions under ERISA or Section 4975 of the Effective Time Code; (ii) no fiduciary of any Company Employee Plan has breached any of the responsibilities or obligations imposed upon fiduciaries under Title I of ERISA; (iii) all Company Employee Plans have been established and maintained substantially in accordance with their terms and have operated in compliance with the requirements of applicable law, and the Company and its Subsidiaries have performed all obligations required to be performed by them under and are not in default under or in violation of any of the Company Employee Plans; (iv) each Company Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified, is the subject of a favorable determination letter from the Internal Revenue Service ("IRS"), and, to the Company's knowledge, nothing has occurred which may reasonably be expected to result in the revocation of such determination; (v) all contributions required to be made with respect to any Company Employee Plan in respect of current or prior plan years which are required pursuant to be reflected in the Company's or the ERISA Affiliate's financial statements in accordance with GAAP have been paid or accrued in accordance with GAAP and Section 412 of the CodeCode and Section 302 of ERISA, (viii) neither or pursuant to the terms of the Company nor an Employee Plan or any collective bargaining agreement, have been made on or before their due dates (including any extensions thereof); (vi) with respect to each Company Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA Affiliate has engaged in a transaction in connection with (excluding any such event for which the Company, its Subsidiaries 30 day notice requirement has been waived under the regulations to Section 4043 of ERISA) has occurred for which there is any outstanding liability to the Company or any Company ERISA Affiliate Affiliate, nor would be subject to either a material civil penalty assessed pursuant to Sections 502(i) the execution, delivery or 502(e) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 consummation of the Code, transactions contemplated hereby constitute a reportable event for which the 30-day requirement has not been waived; and (ixvii) no Company Employee Plan is under audit or investigation by the IRS, the Department of Labor or the PBGC nor, to the knowledge of the Company, there are no pending, threatened is any such audit or anticipated material claims (other than routine claims for benefits) by, on behalf of or against any of the Plans or any trusts related thereto.
(c) Except as provided pursuant to this Agreement and except with respect to the Plans set forth in Schedule 6.5(c) of the Company Disclosure Schedule, neither the execution, delivery and performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby shall (i) result in any material payment becoming due to any director or employee of the Company, (ii) materially increase any benefits otherwise payable under any Plan or (iii) result in any acceleration of the time of payment or vesting of any benefits under any Plan to any material extentinvestigation threatened.
(d) The funded status Company Disclosure Letter sets forth a true and complete list of each current or former employee, officer or director of the Company or any of its Subsidiaries who holds (i) any Company Option as of December 31the date of this Agreement, 1998 together with the number of shares of Company Common Stock subject to such option, the exercise price of such option, the vested and unvested portion of such option, whether such option is intended to qualify as an incentive stock option within the meaning of Section 422(b) of the retirement plans Code, and the post-retiree medical liabilities expiration date of such option or (ii) any shares of Company Common Stock that are restricted and the date(s) of lapse of such restrictions. In addition, the Company Disclosure Letter sets forth, in the aggregate, the number of shares of Company Common Stock underlying (i) all other outstanding rights under Company Employee Plans (other than plans that are qualified plans under Section 401(a) of the Code) to receive shares of Company Common Stock, to the extent that such shares of Company Common Stock are not included in the number of shares set forth in the third sentence of Section 3.3, and (ii) compensation based on the value of shares of Company Common Stock.
(e) The PBGC has not notified the Company regarding the institution of proceedings to terminate any Company Employee Plan that is subject to Title IV of ERISA (each, a "Company Defined Benefit Plan"). The Company Defined Benefit Plans have no accumulated or waived funding deficiencies within the meaning of Section 412 of the Code nor have any extensions of any amortization period within the meaning of Section 412 of the Code or 302 of ERISA been applied for with respect thereto.
(f) To the knowledge of the Company, all employee benefit plans of the Company and any of its Subsidiaries that are correct primarily subject to the laws of any jurisdiction outside of the United States have A-20 22 been maintained in compliance with all material respects based applicable law (including, if they are intended to qualify for special tax treatment, applicable tax laws), except for noncompliance that would not individually or in the aggregate have a Company Material Adverse Effect.
(g) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Company Employee Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee of the Company or any Subsidiary of the Company, or (ii) result in the triggering or imposition of any restrictions or limitations on the assumptions disclosed in right of the Company or any Subsidiary of the Company to amend or terminate any Company Employee Plan. No payment or benefit which is required to be paid or distributed, prior to or after the Closing, by Parent, the Company's Form 10-K for , the fiscal year ended December 31Parent Surviving Corporation or any of their respective Subsidiaries under any Company Employee Plan or any other plan, 1998, and since December 31, 1998, there have been no material changes in program or amendments arrangement of the Company to any current or former employee of the Company's foreign defined benefit plansCompany or any Subsidiary of the Company will be characterized as an "excess parachute payment," within the meaning of Section 280G(b)(1) of the Code.
Appears in 1 contract
Employee Matters; ERISA. (a) Section 4.13 of the The Company Disclosure Schedule sets forth a list of each Letter lists all employee pension benefit plan, arrangement or agreement, including each employment, severance or similar agreement, that is maintained plans (as of the date hereof (the "Plans"defined in Section 3(2) by the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate") which, together with the Company, would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder ("ERISA")), for the all employee welfare benefit plans (as defined in Section 3(1) of any current ERISA), all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other or similar material fringe or employee benefit plans, programs or arrangements, all consulting agreements with former employee, officer, director or independent contractor officers and directors of the Company andand all employment, termination, change-in-control or severance agreements, in each case, pursuant to which the Company or any of its Subsidiaries may have any liability that is material to the Company and its Subsidiaries, taken as a whole (together, the "Company Employee Plans"), excluding, however, employee benefit plans that are primarily subject to the laws of any jurisdiction outside of the United States.
(b) Except as disclosed in the Company SEC Reports filed prior to the date of this Agreement, no material liability under Title IV of ERISA has been or is reasonably expected to be incurred by the Company or any Subsidiary of the Company or any entity which is considered a single employer with the Company or any Subsidiary of the Company under Section 4001(a)(15) of ERISA or Section 414 of the Code (a "Company ERISA Affiliate"), other than liabilities for premium payments to the Pension Benefit Guaranty Corporation ("PBGC") and liabilities that have previously been satisfied.
(c) Except as disclosed in the Company SEC Reports filed prior to the date hereof, none of the Company has provided Acquisition Company Employee Plans promises or its representatives with a copy of each material Plan.
(i) Each of the Plans has been operated and administered in compliance in all material respects with applicable lawprovides retiree medical or other retiree welfare benefits to any person, including but not limited to ERISA and the Internal Revenue Code of 1986, other than health continuation coverage as amended (the "Code"), (ii) each of the Plans intended to be "qualified" within the meaning of required by Section 401(a) 4980B of the Code has received a favorable determination letter from the Internal Revenue Service to such effect and the Company knows or Part 6 of no event that would cause the disqualification of any such Plan, (iii) no Plan is subject to Title IV I of ERISA, (iv) other than the Company's retiree medical plan and retiree death benefit plan and the Alliance Tool Corporation health care plan, no Plan provides welfare benefits (whether or not insured) with respect to current or former employees none of the Company beyond their retirement or other termination of service, other than coverage mandated by applicable law or benefits the full cost of which is borne by the current or former employee (or such employee's beneficiary), (v) no 20 30 liability under Title IV of ERISA or Section 412 of the Code has been incurred (directly or indirectly) in connection with any Plan that has not been satisfied in full, (vi) no Plan Employee Plans is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA. Except as set forth in the Company SEC Reports filed prior to the date of this Agreement and except, in the aggregate, as would not have, or reasonably be expected to have, a plan described Company Material Adverse Effect, (i) no party in interest or disqualified person (as defined in Section 4063 3(14) of ERISA, (viiERISA and Section 4975 of the Code) all contributions or other amounts payable by has at any time engaged in a transaction with respect to any Company Employee Plan which could subject the Company or any Company ERISA Affiliate as Affiliate, directly or indirectly, to any tax, penalty or other liability for prohibited transactions under ERISA or Section 4975 of the Effective Time Code; (ii) no fiduciary of any Company Employee Plan has breached any of the responsibilities or obligations imposed upon fiduciaries under Title I of ERISA; (iii) all Company Employee Plans have been established and maintained substantially in accordance with their terms and have operated in compliance with the requirements of applicable law, and the Company and its Subsidiaries have performed all obligations required to be performed by them under and are not in default under or in violation of any of the Company Employee Plans; (iv) each Company Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified, is the subject of a favorable determination letter from the Internal Revenue Service ("IRS"), and, to the Company's knowledge, nothing has occurred which may reasonably be expected to result in the revocation of such determination; (v) all contributions required to be made with respect to any Company Employee Plan in respect of current or prior plan years which are required pursuant to be reflected in the Company's or the ERISA Affiliate's financial statements in accordance with GAAP have been paid or accrued in accordance with GAAP and Section 412 of the CodeCode and Section 302 of ERISA, (viii) neither or pursuant to the terms of the Company nor an Employee Plan or any collective bargaining agreement, have been made on or before their due dates (including any extensions thereof); (vi) with respect to each Company Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA Affiliate has engaged in a transaction in connection with (excluding any such event for which the Company, its Subsidiaries 30 day notice requirement has been waived under the regulations to Section 4043 of ERISA) has occurred for which there is any outstanding liability to the Company or any Company ERISA Affiliate Affiliate, nor would be subject to either a material civil penalty assessed pursuant to Sections 502(i) the execution, delivery or 502(e) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 consummation of the Code, transactions contemplated hereby constitute a reportable event for which the 30-day requirement has not been waived; and (ixvii) no Company Employee Plan is under audit or investigation by the IRS, the Department of Labor or the PBGC nor, to the knowledge of the Company, there are no pending, threatened is any such audit or anticipated material claims (other than routine claims for benefits) by, on behalf of or against any of the Plans or any trusts related thereto.
(c) Except as provided pursuant to this Agreement and except with respect to the Plans set forth in Schedule 6.5(c) of the Company Disclosure Schedule, neither the execution, delivery and performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby shall (i) result in any material payment becoming due to any director or employee of the Company, (ii) materially increase any benefits otherwise payable under any Plan or (iii) result in any acceleration of the time of payment or vesting of any benefits under any Plan to any material extentinvestigation threatened.
(d) The funded status Company Disclosure Letter sets forth a true and complete list of each current or former employee, officer or director of the Company or any of its Subsidiaries who holds (i) any Company Option as of December 31the date of this Agreement, 1998 together with the number of shares of Company Common Stock subject to such option, the exercise price of such option, the vested and unvested portion of such option, and the expiration date of such option or (ii) any shares of Company Common Stock that are restricted and the date(s) of lapse of such restrictions. In addition, the Company Disclosure Letter sets forth, in the aggregate, (i) the number of shares of Company Common Stock underlying all other outstanding rights under Company Employee Plans (other than plans that are qualified plans under Section 401(a) of the retirement Code) to receive shares of Company Common Stock, to the extent that such shares of Company Common Stock are not included in the number of shares set forth in the third sentence of Section 3.3, and (ii) compensation based on the value of shares of Company Common Stock.
(e) The PBGC has not notified the Company regarding the institution of proceedings to terminate any Company Employee Plan that is subject to Title IV of ERISA (each, a "Company Defined Benefit Plan"). The Company Defined Benefit Plans have no accumulated or waived funding deficiencies within the meaning of Section 412 of the Code nor have any extensions of any amortization period within the meaning of Section 412 of the Code or 302 of ERISA been applied for with respect thereto.
(f) To the knowledge of the Company, all employee benefit plans and the post-retiree medical liabilities of the Company and any of its Subsidiaries that are correct primarily subject to the laws of any jurisdiction outside of the United States have been maintained in compliance with all material respects based applicable law (including, if they are intended to qualify for special tax treatment, applicable tax laws), except for noncompliance that would not individually or in the aggregate have, or reasonably be expected to have, a Company Material Adverse Effect.
(g) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Company Employee Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee of the Company or any Subsidiary of the Company, or (ii) result in the triggering or imposition of any restrictions or limitations on the assumptions disclosed in right of the Company's Form 10-K for Company or any Subsidiary of the fiscal year ended December 31, 1998, and since December 31, 1998, there have been no material changes in Company to amend or amendments to the Company's foreign defined benefit plansterminate any Company Employee Plan.
Appears in 1 contract
Employee Matters; ERISA. Except as set forth on Disclosure Schedule 5.14, neither the Company nor any of its Subsidiaries has in effect any employment agreements, consulting agreements, deferred compensation, pension or retirement agreements or arrangements, bonus, retirement, severance, incentive or equity incentive or profit sharing plans or arrangements, or labor or collective bargaining agreements, written or oral (a) Section 4.13 other than at-will employment agreements entered into in the ordinary course of business). To the Company’s Knowledge, none of the officers or other key employees of the Company or its Subsidiaries presently intends to terminate his or her employment. The Company and its Subsidiaries are in compliance in all material respects with all applicable Laws relating to labor, employment, fair employment practices, terms and conditions of employment, and wages and hours. Upon termination of the employment of any employees, neither the Company nor any of its Subsidiaries will be obligated to provide advance notice of termination of employment or be liable to any such employees for so-called “severance pay” or retiree health benefits. The Company and its Subsidiaries are in material compliance with the terms of all plans, and programs, including, without limitation, those and agreements listed on Disclosure Schedule sets forth a list of 5.14, and each employee benefit such plan, arrangement program or agreement, including each employment, severance or similar agreement, that agreement is maintained as in compliance with all of the date hereof (the "Plans") by the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate") which, together with the Company, would be deemed a "single employer" within the meaning of Section 4001 requirements and provisions of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), for any similar foreign Laws, and the benefit of any current or former employee, officer, director or independent contractor Code and is terminable in the discretion of the Company and, prior or its Subsidiary without liability to the date hereof, the Company has provided Acquisition Company or its representatives with a copy of each material Plan.
(i) Each of the Plans Subsidiaries upon or following such termination. No such plan, or program has been operated and administered engaged in compliance any “prohibited transaction” as defined in all material respects with applicable law, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the "Code"), (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) 4975 of the Code or has received a favorable determination letter from the Internal Revenue Service incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, nor has any reportable event as defined in Section 4043(b) of ERISA occurred with respect to any such effect and plan or program. Neither the Company knows nor any of no event that would cause the disqualification of its Subsidiaries has maintained, sponsored or contributed to any such Plan, (iii) no Plan plan which is subject to Title IV of ERISA, (iv) other than the Company's retiree medical plan and retiree death benefit plan and the Alliance Tool Corporation health care plan, no Plan provides welfare benefits (whether or not insured) with respect to current or former employees of the Company beyond their retirement or other termination of service, other than coverage mandated by applicable law or benefits the full cost of which is borne by the current or former employee (or such employee's beneficiary), (v) no 20 30 liability under Title IV of ERISA or Section 412 of the Code Code. At no time has the Company or its Subsidiaries contributed to or been incurred (directly or indirectly) in connection with obligated to contribute to any Plan that has not been satisfied in full, (vi) no Plan is a "multiemployer pension “multi-employer plan," ” as such term is defined in Section 3(37) of ERISA. With respect to each plan listed on Disclosure Schedule 5.14, or a plan described in all required filings, including all filings required to be made with the United States Department of Labor, Internal Revenue Service, and any foreign Governmental Authority have been timely filed. Any “nonqualified deferred compensation plan” (as such term is defined under Section 4063 409A(d)(1) of ERISA, (viithe Code and the guidance thereunder) all contributions or other amounts payable by under which the Company or any ERISA Affiliate as its Subsidiaries make, are obligated to make or promises to make, payments (each, a “409A Plan”) complies in all material respects, in both form and operation, with the requirements of Section 409A of the Effective Time with respect to any Plan in respect of current or prior plan years which are required Code and the guidance thereunder. No payment to be reflected in made under any 409A Plan is, or will be, subject to the Company's or the ERISA Affiliate's financial statements in accordance with GAAP have been paid or accrued in accordance with GAAP and penalties of Section 412 409A(a)(1) of the Code, (viii) neither the Company nor an ERISA Affiliate has engaged in a transaction in connection with which the Company, its Subsidiaries or any ERISA Affiliate would be subject to either a material civil penalty assessed pursuant to Sections 502(i) or 502(e) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 of the Code, and (ix) to the knowledge of the Company, there are no pending, threatened or anticipated material claims (other than routine claims for benefits) by, on behalf of or against any of the Plans or any trusts related thereto.
(c) Except as provided pursuant to this Agreement and except with respect to the Plans set forth in Schedule 6.5(c) of the Company Disclosure Schedule, neither the execution, delivery and performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby shall (i) result in any material payment becoming due to any director or employee of the Company, (ii) materially increase any benefits otherwise payable under any Plan or (iii) result in any acceleration of the time of payment or vesting of any benefits under any Plan to any material extent.
(d) The funded status as of December 31, 1998 of the retirement plans and the post-retiree medical liabilities of the Company and its Subsidiaries are correct in all material respects based on the assumptions disclosed in the Company's Form 10-K for the fiscal year ended December 31, 1998, and since December 31, 1998, there have been no material changes in or amendments to the Company's foreign defined benefit plans.
Appears in 1 contract
Employee Matters; ERISA. (a) Section 4.13 of the The Company Disclosure Schedule sets forth a list of each Letter lists all employee pension benefit plan, arrangement or agreement, including each employment, severance or similar agreement, that is maintained plans (as of the date hereof (the "Plans"defined in Section 3(2) by the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate") which, together with the Company, would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder ("ERISA")), for the all employee welfare benefit plans (as defined in Section 3(1) of any current ERISA), all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other or similar material fringe or employee benefit plans, programs or arrangements, all consulting agreements with former employee, officer, director or independent contractor officers and directors of the Company andand all employment, termination, change-in-control or severance agreements, in each case, pursuant to which the Company or any of its Subsidiaries may have any liability that is material to the Company and its Subsidiaries, taken as a whole (together, the "COMPANY EMPLOYEE PLANS"), excluding, however, employee benefit plans that are primarily subject to the laws of any jurisdiction outside of the United States.
(b) Except as disclosed in the Company SEC Reports filed prior to the date hereof, the Company has provided Acquisition Company or its representatives with a copy of each material Plan.
(i) Each of the Plans has been operated and administered in compliance in all material respects with applicable law, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the "Code"), (ii) each of the Plans intended to be "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to such effect and the Company knows of no event that would cause the disqualification of any such Plan, (iii) no Plan is subject to Title IV of ERISA, (iv) other than the Company's retiree medical plan and retiree death benefit plan and the Alliance Tool Corporation health care planthis Agreement, no Plan provides welfare benefits (whether or not insured) with respect to current or former employees of the Company beyond their retirement or other termination of service, other than coverage mandated by applicable law or benefits the full cost of which is borne by the current or former employee (or such employee's beneficiary), (v) no 20 30 material liability under Title IV of ERISA or Section 412 of the Code has been or is reasonably expected to be incurred (directly or indirectly) in connection with any Plan that has not been satisfied in full, (vi) no Plan is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA, or a plan described in Section 4063 of ERISA, (vii) all contributions or other amounts payable by the Company or any ERISA Affiliate as Subsidiary of the Effective Time Company or any entity which is considered a single employer with respect to the Company or any Plan in respect of current or prior plan years which are required to be reflected in the Company's or the ERISA Affiliate's financial statements in accordance with GAAP have been paid or accrued in accordance with GAAP and Section 412 Subsidiary of the Code, (viii) neither the Company nor an ERISA Affiliate has engaged in a transaction in connection with which the Company, its Subsidiaries or any ERISA Affiliate would be subject to either a material civil penalty assessed pursuant to Sections 502(i) or 502(eunder Section 4001(a)(15) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 414 of the CodeCode (a "COMPANY ERISA AFFILIATE"), and (ix) other than liabilities for premium payments to the knowledge of the Company, there are no pending, threatened or anticipated material claims Pension Benefit Guaranty Corporation (other than routine claims for benefits"PBGC") by, on behalf of or against any of the Plans or any trusts related theretoand liabilities that have previously been satisfied.
(c) Except as provided pursuant to this Agreement and except with respect disclosed in the Company SEC Reports filed prior to the Plans set forth in Schedule 6.5(c) date hereof, none of the Company Disclosure ScheduleEmployee Plans promises or provides retiree medical or other retiree welfare benefits to any person, neither the execution, delivery and performance of this Agreement other than health continuation coverage as required by the Company nor the consummation by the Company Section 4980B of the transactions contemplated hereby shall (i) result in any material payment becoming due to any director Code or employee Part 6 of the CompanyTitle I of ERISA, (ii) materially increase any benefits otherwise payable under any Plan or (iii) result in any acceleration of the time of payment or vesting of any benefits under any Plan to any material extent.
(d) The funded status as of December 31, 1998 of the retirement plans and the post-retiree medical liabilities none of the Company and its Subsidiaries are correct in all material respects based on the assumptions disclosed in the Company's Form 10-K for the fiscal year ended December 31, 1998, and since December 31, 1998, there have been no material changes in or amendments to the Company's foreign Employee Plans is a "multiemployer plan" as such term is defined benefit plans.in
Appears in 1 contract
Samples: Merger Agreement (Sonat Inc)
Employee Matters; ERISA. (a) Section 4.13 of the The Company Disclosure Schedule sets forth a list of each Letter lists all employee pension benefit plan, arrangement or agreement, including each employment, severance or similar agreement, that is maintained plans (as of the date hereof (the "Plans"defined in Section 3(2) by the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate") which, together with the Company, would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder ("ERISA")), for the all employee welfare benefit plans (as defined in Section 3(1) of any current ERISA), all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other or similar material fringe or employee benefit plans, programs or arrangements, all consulting agreements with former employee, officer, director or independent contractor officers and directors of the Company andand all employment, termination, change-in-control or severance agreements, in each case, pursuant to which the Company or any of its Subsidiaries may have any liability that is material to the Company and its Subsidiaries, taken as a whole (together, the "Company Employee Plans"), excluding, however, employee benefit plans that are primarily subject to the laws of any jurisdiction outside of the United States.
(b) Except as disclosed in the Company SEC Reports filed prior to the date of this Agreement, no material liability under Title IV of ERISA has been or is reasonably expected to be incurred by the Company or any Subsidiary of the Company or any entity which is considered a single employer with the Company or any Subsidiary of the Company under Section 4001(a)(15) of ERISA or Section 414 of the Code (a "Company ERISA Affiliate"), other than liabilities for premium payments to the Pension Benefit Guaranty Corporation ("PBGC") and liabilities that have previously been satisfied.
(c) Except as disclosed in the Company SEC Reports filed prior to the date hereof, none of the Company has provided Acquisition Company Employee Plans promises or its representatives with a copy of each material Plan.
(i) Each of the Plans has been operated and administered in compliance in all material respects with applicable lawprovides retiree medical or other retiree welfare benefits to any person, including but not limited to ERISA and the Internal Revenue Code of 1986, other than health continuation coverage as amended (the "Code"), (ii) each of the Plans intended to be "qualified" within the meaning of required by Section 401(a) 4980B of the Code has received a favorable determination letter from the Internal Revenue Service to such effect and the Company knows or Part 6 of no event that would cause the disqualification of any such Plan, (iii) no Plan is subject to Title IV I of ERISA, (iv) other than the Company's retiree medical plan and retiree death benefit plan and the Alliance Tool Corporation health care plan, no Plan provides welfare benefits (whether or not insured) with respect to current or former employees none of the Company beyond their retirement or other termination of service, other than coverage mandated by applicable law or benefits the full cost of which is borne by the current or former employee (or such employee's beneficiary), (v) no 20 30 liability under Title IV of ERISA or Section 412 of the Code has been incurred (directly or indirectly) in connection with any Plan that has not been satisfied in full, (vi) no Plan Employee Plans is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA. Except as set forth in the Company SEC Reports filed prior to the date of this Agreement and except, in the aggregate, as would not have, or reasonably be expected to have, a plan described Company Material Adverse Effect, (i) no party in interest or disqualified person (as defined in Section 4063 3(14) of ERISA, (viiERISA and Section 4975 of the Code) all contributions or other amounts payable by has at any time engaged in a transaction with respect to any Company Employee Plan which could subject the Company or any Company ERISA Affiliate as Affiliate, directly or indirectly, to any tax, penalty or other liability for prohibited transactions under ERISA or Section 4975 of the Effective Time Code; (ii) no fiduciary of any Company Employee Plan has breached any of the responsibilities or obligations imposed upon fiduciaries under Title I of ERISA; (iii) all Company Employee Plans have been established and maintained substantially in accordance with their terms and have operated in compliance with the requirements of applicable law, and the Company and its Subsidiaries have performed all obligations required to be performed by them under and are not in default under or in violation of any of the Company Employee Plans; (iv) each Company Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified, is the subject of a favorable determination letter from the Internal Revenue Service ("IRS"), and, to the Company's knowledge, nothing has occurred which may reasonably be expected to result in the revocation of such determination; (v) all contributions required to be made with respect to any Company Employee Plan in respect of current or prior plan years which are required pursuant to be reflected in the Company's or the ERISA Affiliate's financial statements in accordance with GAAP have been paid or accrued in accordance with GAAP and Section 412 of the CodeCode and Section 302 of ERISA, (viii) neither or pursuant to the terms of the Company nor an Employee Plan or any collective bargaining agreement, have been made on or before their due dates (including any extensions thereof); (vi) with respect to each Company Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA Affiliate has engaged in a transaction in connection with (excluding any such event for which the Company, its Subsidiaries 30 day notice requirement has been waived under the regulations to Section 4043 of ERISA) has occurred for which there is any outstanding liability to the Company or any Company ERISA Affiliate Affiliate, nor would be subject to either a material civil penalty assessed pursuant to Sections 502(i) the execution, delivery or 502(e) of ERISA or a material tax imposed pursuant to Section 4975 or 4976 consummation of the Code, transactions contemplated hereby constitute a reportable event for which the 30-day requirement has not been waived; and (ixvii) no Company Employee Plan is under audit or investigation by the IRS, the Department of Labor or the PBGC nor, to the knowledge of the Company, there are no pending, threatened is any such audit or anticipated material claims (other than routine claims for benefits) by, on behalf of or against any of the Plans or any trusts related thereto.
(c) Except as provided pursuant to this Agreement and except with respect to the Plans set forth in Schedule 6.5(c) of the Company Disclosure Schedule, neither the execution, delivery and performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby shall (i) result in any material payment becoming due to any director or employee of the Company, (ii) materially increase any benefits otherwise payable under any Plan or (iii) result in any acceleration of the time of payment or vesting of any benefits under any Plan to any material extentinvestigation threatened.
(d) The funded status Company Disclosure Letter sets forth a true and complete list of each current or former employee, officer or director of the Company or any of its Subsidiaries who holds (i) any Company Option as of December 31the date of this Agreement, 1998 together with the number of shares of Company Common Stock subject to such option, the exercise price of such option, the vested and unvested portion of such option, whether such
(e) The PBGC has not notified the Company regarding the institution of proceedings to terminate any Company Employee Plan that is subject to Title IV of ERISA (each, a "Company Defined Benefit Plan"). The Company Defined Benefit Plans have no accumulated or waived funding deficiencies within the meaning of Section 412 of the retirement Code nor have any extensions of any amortization period within the meaning of Section 412 of the Code or 302 of ERISA been applied for with respect thereto.
(f) To the knowledge of the Company, all employee benefit plans and the post-retiree medical liabilities of the Company and any of its Subsidiaries that are correct primarily subject to the laws of any jurisdiction outside of the United States have been maintained in compliance with all material respects based applicable law (including, if they are intended to qualify for special tax treatment, applicable tax laws), except for noncompliance that would not individually or in the aggregate have a Company Material Adverse Effect.
(g) The execution and delivery of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Company Employee Plan, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee of the Company or any Subsidiary of the Company, or (ii) result in the triggering or imposition of any restrictions or limitations on the assumptions disclosed in right of the Company or any Subsidiary of the Company to amend or terminate any Company Employee Plan. No payment or benefit which is required to be paid or distributed, prior to or after the Closing, by Parent, the Company's Form 10-K for , the fiscal year ended December 31Parent Surviving Corporation or any of their respective Subsidiaries under any Company Employee Plan or any other plan, 1998, and since December 31, 1998, there have been no material changes in program or amendments arrangement of the Company to any current or former employee of the Company's foreign defined benefit plansCompany or any Subsidiary of the Company will be characterized as an "excess parachute payment," within the meaning of Section 280G(b)(1) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Zilkha Michael)
Employee Matters; ERISA. (a) Section 4.13 3.10(a) of the Company Stockholder Disclosure Schedule sets forth a list of each lists all employee benefit plan, arrangement or agreement, including each employment, severance or similar agreement, that is maintained plans (as of the date hereof (the "Plans"defined in Section 3(3) by the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate") which, together with the Company, would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) and all bonus, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all termination, severance or other contracts or agreements, whether formal or informal, whether or not set forth in writing, whether covering one Person or more than one Person, and whether or not subject to any of the provisions of ERISA, which are maintained, contributed to or sponsored by Stockholder, the Company or any of its subsidiaries for the benefit of any current employee or which otherwise cover any employee or former employee, officer, director or independent contractor employee of the Company andor any of its subsidiaries (each item so listed on Section 3.10(a) of the Stockholder Disclosure Schedule being referred to herein individually, prior as a "Company Employee Benefit Plan" and collectively, as the "Company Employee Benefit Plans"). Stockholder has delivered to the date hereof, the Company has provided Acquisition Company or its representatives with Buyer a complete and accurate copy (where applicable) of each material Plan.
(i) Each each written Company Employee Benefit Plan and descriptions of the Plans has been operated and administered in compliance in any unwritten Company Employee Benefit Plan (including all material respects with applicable law, including but amendments thereto whether or not limited to ERISA and the Internal Revenue Code of 1986, as amended (the "Code"such amendments are currently effective), (ii) each summary plan description and summary of material modifications relating to a Company Employee Benefit Plan, (iii) each trust agreement or other funding arrangement with respect to each Company Employee Benefit Plan, including insurance contracts, (iv) the most recently filed Internal Revenue Service Form 5500 relating to each Company Employee Benefit Plan (if any), (v) the most recently received Internal Revenue Service determination letter for each Company Employee Benefit Plan, if applicable, and (vi) the most recently prepared actuarial reports and the three most recently prepared financial statements, if applicable, in connection with each Company Employee Benefit Plan. Except as set forth on Section 3.10(a) of the Plans intended Stockholder Disclosure Schedule, neither Stockholder nor the Company nor any of its subsidiaries has made any express or implied commitment, whether legally enforceable or not, (i) to be create or cause to exist any other employee benefit plan, program or arrangement or (ii) to modify, change or terminate any Company Employee Benefit Plan.
(b) Except as set forth on Section 3.10(b) of the Stockholder Disclosure Schedule, none of the Company Employee Benefit Plans, or any employment agreement or other contract to which the Company is a party or bound, provides for the payment of or obligates the Company or any of its subsidiaries to pay separation, severance, termination or similar-type benefits to any Person or obligates the Company or any of its subsidiaries to pay separation, severance, termination or similar-type benefits solely as a result of any transaction contemplated by this Agreement or as a result of a "qualifiedchange in control," within the meaning of such term under Section 401(a) 280G of the Code has received a favorable determination letter from the Internal Revenue Service to such effect and Code.
(c) Neither the Company knows of no event that would cause the disqualification of nor any such Plan, (iii) no Plan is subject to Title IV of ERISA, (iv) other than the Company's retiree medical plan and retiree death benefit plan and the Alliance Tool Corporation health care plan, no Plan provides welfare benefits (whether or not insured) with respect to current or former employees subsidiary of the Company beyond their retirement nor any ERISA Affiliate (as herein defined) has maintained, contributed to or other termination participated in a multi-employer plan (within the meaning of service, other than coverage mandated by applicable law or benefits the full cost of which is borne by the current or former employee (or such employee's beneficiary), (v) no 20 30 liability under Title IV of ERISA or Section 412 of the Code has been incurred (directly or indirectly) in connection with any Plan that has not been satisfied in full, (vi) no Plan is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA, or a plan described in Section 4063 of ERISA, (vii) all contributions or other amounts payable by the Company or any ERISA Affiliate as of the Effective Time with respect to any Plan in respect of current or prior plan years which are required to be reflected in the Company's or the ERISA Affiliate's financial statements in accordance with GAAP have been paid or accrued in accordance with GAAP and Section 412 of the Code, (viii) neither the Company nor an ERISA Affiliate has engaged in a transaction in connection with which the Company, its Subsidiaries or any ERISA Affiliate would be subject to either a material civil penalty assessed pursuant to Sections 502(i) or 502(e4001(a)(3) of ERISA or a material tax imposed pursuant multiple employer plan subject to Section 4975 Sections 4063 and 4064 of ERISA) nor has any obligations or 4976 of liabilities, including withdrawal or successor liabilities, regarding any such plan. As used herein, the Code, and (ix) to the knowledge of the Company, there are no pending, threatened or anticipated material claims (other than routine claims for benefits) by, on behalf of or against any of the Plans or any trusts related thereto.
(c) Except as provided pursuant to this Agreement and except with respect to the Plans set forth in Schedule 6.5(c) of the Company Disclosure Schedule, neither the execution, delivery and performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby shall (i) result in any material payment becoming due to any director or employee of the Company, (ii) materially increase any benefits otherwise payable under any Plan or (iii) result in any acceleration of the time of payment or vesting of any benefits under any Plan to any material extent.
(d) The funded status as of December 31, 1998 of the retirement plans and the post-retiree medical liabilities of the Company and its Subsidiaries are correct in all material respects based on the assumptions disclosed in the Company's Form 10-K for the fiscal year ended December 31, 1998, and since December 31, 1998, there have been no material changes in or amendments to the Company's foreign defined benefit plans.term "ERISA
Appears in 1 contract
Samples: Stock Purchase Agreement (Marketing Services Group Inc)
