Employee Matters; ERISA. Except as set forth on Section 2.10 of the ITI Disclosure Schedule: (a) Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, deferred compensation, severance, change of control, share option or other plan, policy, arrangement or agreement relating to employment, compensation or fringe benefits for employees, former employees, officers, trustees or directors of ITI or any of its subsidiaries effective as of the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees or directors of ITI or pursuant to which ITI or any of its subsidiaries has or could reasonably be expected to have any liability (collectively, the "ITI Employee Benefit Plans") is listed in Section 2.10(a) of the ITI Disclosure Schedule, is in material compliance with applicable law, including without limitation ERISA and the Code, and has been administered and operated in all material respects in accordance with its terms and all applicable statutes, orders or governmental rules or regulations currently in effect, including but not limited to, ERISA and the Code. Each ITI Employee Benefit Plan which is intended to be qualified within the meaning of Sections 401(a) and 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS") as to such qualification and, to the knowledge of ITI, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination. (b) Complete and correct copies of the following documents have been made available to Lil Marc as of the date of this Agreement: (i) all ITI Employee Benefit Plans and any related trust agreements or insurance contracts, all plan amendments, service provider contracts, investment management and investment advisory agreements, (ii) the most current summary descriptions and summaries of material modifications and all other employee communications relating to each ITI Employee Benefit Plan subject to ERISA, (iii) the three most recent Form 5500s and Schedules thereto for each ITI Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS and the most recent application for determination filed with the IRS with respect to the qualified status of each ITI Employee Benefit Plan that is intended to qualify under Sections 401(a) and 501(a) of the Code, (v) the most recent accountings with respect to each ITI Employee Benefit Plan funded through a trust, (vi) the most recent actuarial report of the qualified actuary of each ITI Employee Benefit Plan with respect to which actuarial valuations are conducted (vii) all closing agreements under the Employee Plans Closing Agreement Program issued by the IRS and compliance statements under the Voluntary Compliance Resolution program issued by the IRS, and (viii) in the case of stock options or stock appreciation rights issued under any ITI Employee Benefit Plans, a list of holders, date of grant, number of shares, exercise price per share and dates exercisable. (c) Each ITI Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewith. ITI has not contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no person under common control with ITI within the meaning of Section 414 of the Code ("ERISA Affiliate") has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a liability of ITI. (d) Each ITI Employee Benefit Plan covers only employees who are employed by ITI or a subsidiary (or former employees or beneficiaries with respect to service with ITI or a subsidiary). (e) Neither ITI, any subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five-year period preceding the date of this Agreement, at any time contributed to or had an obligation to contribute to any "multiemployer plan," as that term is defined in Section 4001 of ERISA. Neither ITI, any subsidiary , any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, at any time during the last five-year period preceding the date hereof, withdrawn from any Multiemployer Plan or Multiple Employer Plan or incurred any withdrawal liability that has not been satisfied in full. (f) No event has occurred, and there exists no condition or set of circumstances in connection with any ITI Employee Benefit Plan, under which ITI or any subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject to any liability under Section 409 of ERISA, Section 502(i) of ERISA, Title IV of ERISA or Section 4975 of the Code except for instances of non-compliance which, individually or in the aggregate, could not reasonably be expected to have an ITI Material Adverse Effect. (g) No proceeding by the Pension Benefit Guaranty Corporation (the "PBGC") to terminate any ITI Employee Benefit Plans pursuant to Title IV of ERISA has been instituted or threatened, there is no pending or threatened legal action or investigation against or involving any ITI Employee Benefit Plans and there is no basis for any such legal action, proceeding or investigation. No amendment has been adopted which would require ITI, any subsidiary or ERISA Affiliate to provide security pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code. (h) Neither ITI nor any ERISA Affiliate has incurred any liability to the PBGC under Section 302(c)(ii), 4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and no event or condition exists or has existed which could reasonably be expected to result in any such material liability. As of the date of this Agreement, no "reportable event" within the meaning of Section 4043 of ERISA has occurred with respect to any ITI Employee Benefit Plan that is a defined benefit plan under Section 3(35)
Appears in 4 contracts
Samples: Merger Agreement (Lil Marc Inc), Merger Agreement (Lil Marc Inc), Merger Agreement (Lil Marc Inc)
Employee Matters; ERISA. Except as set forth on Section 2.10 of the ITI Disclosure Schedule:
(a) Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, deferred compensation, severance, change of control, share option or other similar option, employment agreement, severance plan or similar option, plan, policy, arrangement agreement or other written agreement relating to employment, compensation, employment benefits, and any other compensation or fringe benefits for employees, former employees, officers, trustees officers or directors of ITI the Company or any of its subsidiaries Company Subsidiaries effective as of the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees trustees, or directors of ITI the Company or pursuant to which ITI the Company or any of its subsidiaries Subsidiaries has or could reasonably be expected to have any liability (collectively, the "ITI Company Employee Benefit Plans") is listed in Section 2.10(a4.10(a) of the ITI Company Disclosure ScheduleSchedule (other than any such agreement with an individual who was never an officer or a director of the Company or any Company Subsidiary, if such agreement is not material when considered individually and would not be material if considered in the aggregate with all other such agreements with individuals who never were officers or directors of the Company or any Company Subsidiary), is in material compliance with applicable law, including without limitation ERISA and law except as set forth in Section 4.10(a) of the CodeCompany Disclosure Schedule, and has been administered and operated in all material respects in accordance with its terms and all applicable statutes, orders or governmental rules or regulations currently in effect, including but not limited to, ERISA and the Codeterms. Each ITI Company Employee Benefit Plan which is intended to be qualified within the meaning of Sections Section 401(a) and 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS") IRS as to such qualification and, to the knowledge Knowledge of ITIthe Company, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination.
(b) Complete and correct copies of the following documents have been made available to Lil Marc Parent as of the date of this Agreement: (i) all ITI Company Employee Benefit Plans and any related trust agreements agreements, insurance contracts or insurance contracts, all plan amendments, service provider contracts, investment management other funding arrangements and investment advisory agreementsany amendments to each, (ii) the most current summary plan descriptions and summaries of material modifications and all other employee communications relating to each ITI Company Employee Benefit Plan subject to ERISAERISA and any summary of material modifications issued since such summary plan descriptions, (iii) the three most recent Form 5500s and Schedules thereto for each ITI Company Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS and the most recent application for determination filed with the IRS Internal Revenue Service with respect to the qualified status of each ITI Company Employee Benefit Plan that is intended to qualify under Sections Section 401(a) and 501(a) of the Code, (v) the most recent accountings with respect to each ITI Company Employee Benefit Plan funded through a trust, trust or through a funding arrangement and (vi) the most recent actuarial report of the qualified enrolled actuary of each ITI Company Employee Benefit Plan with respect to which actuarial valuations are conducted (vii) all closing agreements under the Employee Plans Closing Agreement Program issued by the IRS and compliance statements under the Voluntary Compliance Resolution program issued by the IRS, and (viii) in the case of stock options or stock appreciation rights issued under any ITI Employee Benefit Plans, a list of holders, date of grant, number of shares, exercise price per share and dates exercisableconducted.
(c) Except as set forth in Section 4.10(c) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary maintains or is obligated to provide benefits under any Company Employee Benefit Plan (other than as an incidental benefit under a Plan qualified under Section 401(a) of the Code) which provides health or welfare benefits to retirees or other terminated employees other than benefit continuations as required pursuant to Section 601 of ERISA. Each ITI Company Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewith. ITI has not Neither the Company nor any Company Subsidiaries have contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no ). No person or entity other than the Company or a Company Subsidiary is, or has in the last five years been, considered to be within a controlled group with the Company or any Company Subsidiary or under common control with ITI the Company or a Company Subsidiary within the meaning of Section 414 of the Code ("ERISA Affiliate") has incurred a tax liability under Code or Section 5000(a) that is or could reasonably be expected to be a liability 4001 of ITIERISA.
(d) Each ITI Except as set forth in Section 4.10(d) of the Company Disclosure Schedule, each Company Employee Benefit Plan covers only employees who are employed by ITI the Company or a subsidiary Company Subsidiary (or former employees or beneficiaries with respect to service with ITI the Company or a subsidiaryCompany Subsidiary).
(e) Neither ITIExcept as set forth in Section 4.10(e) of the Company Disclosure Schedule, any subsidiary, any ERISA Affiliate neither the Company nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA hasCompany Subsidiary, within the five-year period preceding the date of this Agreement, at any time contributed to or had an obligation to contribute to any "multiemployer plan," as that term is defined in Section 4001 of ERISA. Neither ITI, any subsidiary , any ERISA Affiliate the Company nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 Company Subsidiary is subject to "withdrawal liability" as that term is defined in Part I, Subtitle E, Title IV, of ERISA hasand if the Company or any Company Subsidiary were to withdraw from a "multiemployer plan" at the Merger Effective Time, at neither the Company, nor any time during the last five-year period preceding the date hereofCompany Subsidiary would have any "withdrawal liability" as that term is defined in Part I, withdrawn from any Multiemployer Plan or Multiple Employer Plan or incurred any withdrawal liability that has not been satisfied in fullSubtitle E, Title IV, of ERISA.
(f) No event has occurred, and there exists no condition or set of circumstances in connection with any ITI Company Employee Benefit Plan, under which ITI the Company or any subsidiaryCompany Subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could is likely to be subject to any liability liable under Section 409 of ERISA, Section 502(i) of ERISA, Title IV of ERISA or Section 4975 of the Code except for instances of non-compliance which, individually or in the aggregate, could not reasonably be expected to have an ITI Material Adverse EffectCode.
(g) No proceeding by Neither the Company nor any ERISA Affiliate has incurred any liability to the Pension Benefit Guaranty Corporation (the "PBGC") to terminate any ITI Employee Benefit Plans pursuant to Title IV of ERISA has been instituted or threatened, there is no pending or threatened legal action or investigation against or involving any ITI Employee Benefit Plans and there is no basis for any such legal action, proceeding or investigation. No amendment has been adopted which would require ITI, any subsidiary or ERISA Affiliate to provide security pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code.
(h) Neither ITI nor any ERISA Affiliate has incurred any liability to the PBGC under Section 302(c)(ii), 4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and no event or condition exists or has existed which could reasonably be expected to result in any such material liability. As of the date of this Agreement, no No "reportable event" within the meaning of Section 4043 of ERISA for which the 30-day reporting requirement has not been waived or extended has occurred with respect to any ITI Company Employee Benefit Plan that is a defined benefit plan under Section 3(35)) of ERISA within the 12-month period ending on the date hereof.
(h) Except as set forth in Section 4.10(h) of the Company Disclosure Schedule, no employer securities, employer real property or other employer property is included in the assets of any Company Employee Benefit Plan.
(i) Full payment has been made of all material amounts which the Company or any Company Subsidiary was required under the terms of the Company Employee Benefit Plans to have paid as contributions to such plans on or prior to the Merger Effective Time (excluding any amounts not yet due) and no Company Employee Benefit Plan which is subject to Part III of Subtitle B of Title I of ERISA has incurred any "accumulated funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of the Code, whether or not waived.
(j) Except as set forth in Section 4.10(j) of the Company Disclosure Schedule, no amounts payable under any Company Employee Benefit Plan or other agreement, contract, or arrangement, as a result of or in connection with the Merger, is expected to fail to be deductible for federal income tax purposes by virtue of Section 280G or Section 162(m) of the Code.
Appears in 3 contracts
Samples: Merger Agreement (National Grid Group PLC), Merger Agreement (National Grid Group PLC), Merger Agreement (Niagara Mohawk Power Corp /Ny/)
Employee Matters; ERISA. Except as set forth on in Section 2.10 of the ITI Company Disclosure Schedule:
(a) Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, deferred compensation, severance, change of control, share option or other plan, policy, arrangement or agreement relating to employment, compensation or fringe benefits for employees, former employees, officers, trustees or directors of ITI the Company or any of its subsidiaries effective as of the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees or directors of ITI the Company or pursuant to which ITI the Company or any of its subsidiaries has or could reasonably be expected to have any liability (collectively, the "ITI Employee Benefit PlansCOMPANY EMPLOYEE BENEFIT PLANS") that is material is listed in Section 2.10(a) of the ITI Company Disclosure Schedule, is in material compliance with applicable law, including without limitation ERISA and the Code, and has been administered and operated in all material respects in accordance with its terms and all applicable statutes, orders or governmental rules or regulations currently in effect, including but not limited to, ERISA and the CodeCode except as listed in Section 2.10(a) of the Company Disclosure Schedule (relating to untimely filings of Forms 5500). Each ITI Company Employee Benefit Plan which is intended to be qualified within the meaning of Sections 401(a) and 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS") IRS as to such qualification and, to the knowledge of ITIthe Company, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination.
(b) Complete and correct copies of the following documents have been made available to Lil Marc J Net as of the date of this Agreement: (i) all ITI material Company Employee Benefit Plans and any related trust agreements or insurance contracts, all plan amendments, service provider contracts, investment management and investment advisory agreements, (ii) the most current summary descriptions and summaries of material modifications and all other employee communications relating to each ITI Company Employee Benefit Plan subject to ERISA, (iii) the three most recent Form 5500s and Schedules thereto for each ITI material Company Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS and the most recent application for determination filed with the IRS with respect to the qualified status of each ITI Company Employee Benefit Plan that is intended to qualify under Sections 401(a) and 501(a) of the Code, (v) the most recent accountings with respect to each ITI Company Employee Benefit Plan funded through a trust, (vi) the most recent actuarial report of the qualified actuary of each ITI Company Employee Benefit Plan with respect to which actuarial valuations are conducted (vii) all closing agreements under the Employee Plans Closing Agreement Program issued by the IRS and compliance statements under the Voluntary Compliance Resolution program issued by the IRS, and (viii) in the case of stock options or stock appreciation rights issued under any ITI Company Employee Benefit Plans, a list of holders, date of grant, number of shares, exercise price per share and dates exercisable.
(c) Each ITI Company Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewith. ITI has not contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no person under common control with ITI within the meaning of Section 414 of the Code ("ERISA Affiliate") has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a liability of ITI.
(d) Each ITI Employee Benefit Plan covers only employees who are employed by ITI or a subsidiary (or former employees or beneficiaries with respect to service with ITI or a subsidiary).
(e) Neither ITIthe Company, any subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five-year period preceding the date of this Agreement, at any time contributed to or had an obligation to contribute to any "multiemployer plan," as that term is defined in Section 4001 of ERISA. Neither ITIthe Company, any subsidiary subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, at any time during the last five-year period preceding the date hereof, withdrawn from any Multiemployer Plan multiemployer plan or Multiple Employer Plan multiple employer plan or incurred any withdrawal liability that has not been satisfied in full.
(f) No event has occurred, and there exists no condition or set of circumstances in connection with any ITI Employee Benefit Plan, under which ITI or any subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject to any liability under Section 409 of ERISA, Section 502(i) of ERISA, Title IV of ERISA or Section 4975 of the Code except for instances of non-compliance which, individually or in the aggregate, could not reasonably be expected to have an ITI Material Adverse Effect.
(g) No proceeding by the Pension Benefit Guaranty Corporation (the "PBGC") to terminate any ITI Employee Benefit Plans pursuant to Title IV of ERISA has been instituted or threatened, there is no pending or threatened legal action or investigation against or involving any ITI Employee Benefit Plans and there is no basis for any such legal action, proceeding or investigation. No amendment has been adopted which would require ITI, any subsidiary or ERISA Affiliate to provide security pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code.
(h) Neither ITI nor any ERISA Affiliate has incurred any liability to the PBGC under Section 302(c)(ii), 4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and no event or condition exists or has existed which could reasonably be expected to result in any such material liability. As of the date For purposes of this Agreement, no "reportable eventERISA Affiliate" means any person under common control with the Company within the meaning of Section 4043 414 of the Code; PROVIDED, HOWEVER, that J Net and any person that would not be an ERISA has occurred Affiliate if such person were not under common control with respect J Net within the meaning of Section 414 of the Code shall not be an ERISA Affiliate and shall not be deemed to be under common control with the Company, any ITI Employee Benefit Plan that is a defined benefit plan under subsidiary or any ERISA Affiliate for purposes of Section 3(35)4001 of ERISA.
Appears in 2 contracts
Samples: Stock Purchase Agreement (J Net Enterprises Inc), Stock Purchase Agreement (J Net Enterprises Inc)
Employee Matters; ERISA. Except as set forth on Section 2.10 of the ITI Disclosure Schedule:
(a) 3.8.1 Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, deferred compensation, severanceequity-based, change of control, share option severance or other plan, policy, arrangement plan or written agreement relating to employment, compensation or fringe benefits for employees, former employees, officers, trustees currently maintained or directors of ITI or contributed to by the Company at any of its subsidiaries effective as of time during the five-calendar year period immediately preceding the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees or directors of ITI or pursuant and with respect to which ITI or any of its subsidiaries the Company has or could reasonably be expected to have any liability (collectively, the "ITI Employee Benefit Plans") is listed in on Section 2.10(a) 3.8.1 of the ITI Company Disclosure Schedule, is is, except as disclosed in material Section 3.8.1 of the Company Disclosure Schedule, in substantial compliance with all applicable law, including without limitation ERISA and the Code, laws and has been administered and operated in all material respects in accordance with its terms and all applicable statutes, orders or governmental rules or regulations currently in effect, including but not limited to, ERISA and the Code. terms.
3.8.2 Each ITI Employee Benefit Plan which that is intended to be qualified "qualified" within the meaning of Sections Section 401(a) and 501(a) of the Code Code, has received a favorable determination letter from the Internal Revenue Service (the "IRS") as to such qualification and, to the knowledge Knowledge of ITIthe Company, no event has occurred and no condition exists which that could reasonably be expected to result in the revocation of, or have any adverse effect on, of any such determination.
. No event that constitutes a "reportable event" (bas defined in Section 4043(c) Complete and correct copies of ERISA) for which the following documents have applicable notice requirement has not been made available waived by the Pension Benefit Guaranty Corporation (the "PBGC") has occurred with respect to Lil Marc as any Plan that is subject to Title IV of the date of this Agreement: (i) all ITI Employee Benefit Plans and any related trust agreements or insurance contracts, all plan amendments, service provider contracts, investment management and investment advisory agreements, (ii) the most current summary descriptions and summaries of material modifications and all other employee communications relating to each ITI Employee Benefit ERISA. No Plan subject to Title IV of ERISA has been terminated or is or has been the subject of termination proceedings pursuant to Title IV of ERISA. Except as disclosed in Section 3.8.2 of the Company Disclosure Schedule, full payment has been made of all amounts that the Company was required under the terms of the Plans to have paid as contributions to such Plans on or prior to the date hereof (excluding any amounts not yet due) and, except as disclosed in Section 3.8.2 of the Company Disclosure Schedule, no Plan that is subject to Part 3 of Subtitle B of Title I of ERISA has incurred any "accumulated funding deficiency" (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived.
3.8.3 Neither the Company nor, to the Knowledge of the Company, any other "disqualified person" or "party in interest" (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, (iiirespectively), has engaged in any transaction in connection with any Plan that would result in the imposition of a material penalty pursuant to Section 502(i) the three most recent Form 5500s and Schedules thereto for each ITI Employee Benefit Plan subject of ERISA, damages pursuant to such reporting, (ivSection 409 of ERISA or a tax pursuant to Section 4975(a) the most recent determination of the IRS and the most recent application for determination filed with the IRS with respect to the qualified status of each ITI Employee Benefit Code. The Company has not maintained any Plan (other than a Plan that is intended to qualify under Sections be "qualified" within the meaning of Section 401(a) and 501(a) of the Code, (v) the most recent accountings that provides benefits with respect to each ITI Employee Benefit Plan funded through a trust, employees or former employees following their termination of service with the Company (vi) the most recent actuarial report other than as required pursuant to Section 601 of the qualified actuary of each ITI Employee Benefit Plan with respect to which actuarial valuations are conducted (vii) all closing agreements under the Employee Plans Closing Agreement Program issued by the IRS and compliance statements under the Voluntary Compliance Resolution program issued by the IRS, and (viii) in the case of stock options or stock appreciation rights issued under any ITI Employee Benefit Plans, a list of holders, date of grant, number of shares, exercise price per share and dates exercisable.
(c) ERISA). Each ITI Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material substantial compliance therewith.
3.8.4 Except as set forth on Section 3.8.4 of the Company Disclosure Schedule, no individual shall accrue or receive additional benefits, service or accelerated rights to payment of benefits as a direct result of the transactions contemplated by this Agreement. ITI Except as disclosed in Section 3.8.4 of the Company Disclosure Schedule, no material liability, claim, investigation, audit, action or litigation has been incurred, made, commenced or, to the Knowledge the Company, threatened, by or against any Plan or the Company with respect to any Plan (other than for benefits payable in the ordinary course and PBGC insurance premiums). No Plan or related trust owns any securities in violation of Section 407 of ERISA. Except as disclosed in Section 3.8.4 of the Company Disclosure Schedule, with respect to each Plan that is subject to Title IV of ERISA, as of the most recent actuarial valuation report prepared for each such 8 13 Plan, the aggregate present value of the accrued liabilities thereof did not contributed to exceed the aggregate fair market value of the assets allocable thereto.
3.8.5 Except as set forth on Section 3.8.4 of the Company Disclosure Schedule, no Plan is a nonconforming group health plan "multiemployer plan" (as defined in Code Section 5000(c)4001(a)(3) of ERISA) and the Company has not been obligated to contribute to any multiemployer plan. Except as disclosed in Section 3.8.5 of the Company Disclosure Schedule, no person material liability other than a liability that would not be reasonably likely to have a Company Material Adverse Effect has been incurred under common control Title IV of ERISA (other than for benefits payable in the ordinary course or PBGC insurance premiums) or Section 412(f) or (n) of the Code by any entity required to be aggregated with ITI within the meaning Company, pursuant to Section 4001(b) of ERISA and/or Section 414 414(b) or (c) of the Code ("ERISA Affiliate"and the regulations promulgated thereunder) has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a liability of ITI.
(d) Each ITI Employee Benefit Plan covers only employees who are employed by ITI or a subsidiary (or former employees or beneficiaries with respect to service with ITI or a subsidiary).
(e) Neither ITI, any subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five-year period preceding the date of this Agreement, at any time contributed to or had an obligation to contribute to any "multiemployer employee pension benefit plan," (as that term is defined in Section 4001 of ERISA. Neither ITI, any subsidiary , any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, at any time during the last five-year period preceding the date hereof, withdrawn from any Multiemployer Plan or Multiple Employer Plan or incurred any withdrawal liability that has not been satisfied in full.
(f) No event has occurred, and there exists no condition or set of circumstances in connection with any ITI Employee Benefit Plan, under which ITI or any subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject to any liability under Section 409 of ERISA, Section 502(i3(2) of ERISA, Title IV of ERISA or Section 4975 of the Code except for instances of non-compliance which, individually or in the aggregate, could not reasonably be expected to have an ITI Material Adverse Effect.
(g) No proceeding by the Pension Benefit Guaranty Corporation (the "PBGC") to terminate any ITI Employee Benefit Plans pursuant subject to Title IV of ERISA ERISA.
3.8.6 With respect to each Plan, the Company has made available to Buyer true and complete copies of the following documents, as applicable, to each respective Plan: (a) all Plan documents, with all amendments thereto; (b) the current summary plan description with any applicable summaries of material modifications thereto; (c) all current trust agreements and/or other documents establishing Plan funding arrangements; (d) the most recent IRS determination letter and, if a request for such a letter has been instituted filed and is currently pending with the IRS, a copy of such filing; (e) the most recently prepared IRS Forms 5500; (f) the most recently prepared actuarial valuation reports, if applicable; and (g) the most recently prepared financial statements.
3.8.7 With respect to each material employee benefit plan, policy, arrangement or threatenedagreement maintained for employees of the Company or any Subsidiary located outside of the United States, there is no pending or threatened legal action or investigation against or involving any ITI Employee Benefit Plans each such plan, policy, arrangement and there is no basis for any such legal action, proceeding or investigation. No amendment agreement has been adopted which would require ITI, any subsidiary or ERISA Affiliate to provide security pursuant to (a) listed on Section 307 of ERISA or Section 401(a)(29) 3.8.7 of the CodeCompany Disclosure Schedule and identified thereon as a "Foreign Plan," (b) operated in compliance in all material respects with the terms thereof and (c) maintained in compliance in all material respects with the requirements of all applicable laws.
(h) Neither ITI nor any ERISA Affiliate has incurred any liability to the PBGC under Section 302(c)(ii), 4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and no event or condition exists or has existed which could reasonably be expected to result in any such material liability. As of the date of this Agreement, no "reportable event" within the meaning of Section 4043 of ERISA has occurred with respect to any ITI Employee Benefit Plan that is a defined benefit plan under Section 3(35)
Appears in 1 contract
Samples: Merger Agreement (Metallurg Inc)
Employee Matters; ERISA. Except as set forth on Section 2.10 of the ITI Disclosure Schedule:
(a) Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, deferred compensation, severance, change of control, share option or other plan, policy, arrangement or agreement relating to employment, compensation or fringe benefits for employees, former employees, officers, trustees or directors of ITI the Company or any of its subsidiaries effective as of the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees or directors of ITI the Company or pursuant to which ITI the Company or any of its subsidiaries has or could reasonably be expected to have any liability (collectively, the "ITI Company Employee Benefit Plans") is listed in Section 2.10(a4.10(a) of the ITI Company Disclosure Schedule, is in material compliance with applicable law, including without limitation ERISA and the Code, and has been administered and operated in all material respects in accordance with its terms and all applicable statutes, orders or governmental rules or regulations currently in effect, including but not limited to, ERISA and the Code. Each ITI Company Employee Benefit Plan which is intended to be qualified within the meaning of Sections 401(a) and 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS") as to such qualification and, to the knowledge of ITIthe Company, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination.
(b) Complete and correct copies of the following documents have been made available to Lil Marc DGAC as of the date of this Agreement: (i) all ITI Company Employee Benefit Plans and any related trust agreements or insurance contracts, all plan amendments, service provider contracts, investment management and investment advisory agreements, (ii) the most current summary descriptions and summaries of material modifications and all other employee communications relating to each ITI Company Employee Benefit Plan subject to ERISA, (iii) the three most recent Form 5500s and Schedules thereto for each ITI Company Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS and the most recent application for determination filed with the IRS with respect to the qualified status of each ITI Company Employee Benefit Plan that is intended to qualify under Sections 401(a) and 501(a) of the Code, (v) the most recent accountings with respect to each ITI Company Employee Benefit Plan funded through a trust, (vi) the most recent actuarial report of the qualified actuary of each ITI Company Employee Benefit Plan with respect to which actuarial valuations are conducted (vii) all closing agreements under the Employee Plans Closing Agreement Program issued by the IRS and compliance statements under the Voluntary Compliance Resolution program issued by the IRS, and (viii) in the case of stock options or stock appreciation rights issued under any ITI Company Employee Benefit Plans, a list of holders, date of grant, number of shares, exercise price per share and dates exercisable.
(c) Each ITI Company Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewithwith their respective terms. ITI The Company has not contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no person under common control with ITI the Company within the meaning of Section 414 of the Code ("ERISA Affiliate") has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a material liability of ITIthe Company.
(d) Each ITI Company Employee Benefit Plan covers only employees who are employed by ITI the Company or a subsidiary (or former employees or beneficiaries with respect to service with ITI the Company or a subsidiary).
(e) Neither ITIthe Company, any subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five-year period preceding the date of this Agreement, at any time contributed to or had an obligation to contribute to any "multiemployer plan," as that term is defined in Section 4001 of ERISA. Neither ITIthe Company, any subsidiary , any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, at any time during the last five-year period preceding the date hereof, withdrawn from any Multiemployer Plan multiemployer plan or Multiple Employer Plan multiple employer plan or incurred any withdrawal liability that has not been satisfied in full.
(f) No event has occurred, and and, to the knowledge of any director or officer of the Company, there exists no condition or set of circumstances in connection with any ITI Company Employee Benefit Plan, under which ITI the Company or any subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject to any liability under Section 409 of ERISA, Section 502(i) of ERISA, Title IV of ERISA or Section 4975 of the Code except for instances of non-compliance which, individually or in the aggregate, could not reasonably be expected to have an ITI a Company Material Adverse Effect.
(g) No proceeding by the Pension Benefit Guaranty Corporation (the "PBGC") to terminate any ITI Company Employee Benefit Plans pursuant to Title IV of ERISA has been instituted or threatened, there is no pending or threatened legal action or investigation against or involving any ITI Company Employee Benefit Plans and there is no reasonable basis for any such legal action, proceeding or investigation. No amendment has been adopted which would require ITIthe Company, any subsidiary or ERISA Affiliate to provide security pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code.
(h) Neither ITI the Company nor any ERISA Affiliate has incurred any liability to the PBGC under Section 302(c)(ii), 4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and and, to the knowledge of any director or officer of the Company, no event or condition exists or has existed which could reasonably be expected to result in any such material liability. As of the date of this Agreement, no "reportable event" within the meaning of Section 4043 of ERISA has occurred with respect to any ITI Company Employee Benefit Plan that is a defined benefit plan under Section 3(35)
Appears in 1 contract
Employee Matters; ERISA. Except as set forth on 3.8.1 Section 2.10 3.8.1 of the ITI Company Disclosure Schedule:
Schedule contains a true and complete list of: (ai) Each "each employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, deferred compensation, severance, change of control, share option or other planprogram, policy, arrangement agreement or agreement relating arrangement
3.8.2 Except as disclosed in Section 3.8.2 of the Company Disclosure Schedule, all contributions and other payments required to employment, compensation or fringe benefits for employees, former employees, officers, trustees or directors of ITI have been made by the Company or any of its subsidiaries effective Subsidiaries pursuant to any Company Benefit Plan (or to any person pursuant to the terms thereof) have been timely made or provided for, or the amount of such payment or contribution obligation has been reflected in the Company's financial statements reflected in the Filed Company SEC Documents.
3.8.3 Except as disclosed in Section 3.8.3 of the date hereof or providing benefits as Company Disclosure Schedule, each Company Benefit Plan that is intended to be "qualified" within the meaning of Code Section 401(a) has been determined by the IRS within the last three years to be so qualified, and, to the best knowledge of the date hereof to current employeesCompany, former employees, officers, trustees no event or directors of ITI condition exists or pursuant to which ITI or any of its subsidiaries has or occurred that could reasonably be expected to have result in the revocation of any liability (collectivelysuch determination. The Company and each of its Subsidiaries are in compliance with, the "ITI Employee and each Company Benefit Plan is and has been operated in compliance with, its terms and all applicable laws, rules and regulations governing such Plans") is listed in Section 2.10(a) of the ITI Disclosure Schedule, is in material compliance with applicable law, including without limitation ERISA and the Code, and except for violations that could not reasonably be expected to have a Company Material Adverse Effect. To the best knowledge of the Company, (i) no individual or entity has been administered and operated engaged in all material respects in accordance any transaction with its terms and all applicable statutes, orders respect to any Company Benefit Plan that is a non-exempt prohibited transaction under Section 406 of ERISA or governmental rules or regulations currently in effect, including but not limited to, ERISA and Section 4495 of the Code. Each ITI Employee , or as a result of which the Company or any of its Subsidiaries could reasonably expect to be subject to liability pursuant to ERISA Section 409 or 502 or subject to an excise tax pursuant to Code Section 4975, (ii) no Company Benefit Plan which is intended subject to be qualified within the meaning any ongoing audit, investigation, or other administrative proceeding of Sections 401(a) and 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS"), the Department of Labor (the "DOL"), or any other federal, state or local Governmental Entity, (iii) no Company Benefit Plan is the subject of any pending application for administrative relief under any voluntary compliance program of any Governmental Entity (including without limitation the IRS's Voluntary Compliance Resolution Program or Walk-in Closing Agreement Program or the DOL's Delinquent Filer Voluntary Compliance Program), and (iv) no matter is pending relating to any Company Benefit Plan before any court.
3.8.4 Except as disclosed in Section 3.8.4 of the Company Disclosure Schedule with respect to such qualification the Company Benefit Plans, individually and in the aggregate, no termination or partial termination of any Company Benefit Plan or other event has occurred at any time, and, to the best knowledge of ITIthe Company, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination.
(b) Complete and correct copies of the following documents have been made available to Lil Marc as of the date of this Agreement: (i) all ITI Employee Benefit Plans and any related trust agreements or insurance contracts, all plan amendments, service provider contracts, investment management and investment advisory agreements, (ii) the most current summary descriptions and summaries of material modifications and all other employee communications relating to each ITI Employee Benefit Plan subject to ERISA, (iii) the three most recent Form 5500s and Schedules thereto for each ITI Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS and the most recent application for determination filed with the IRS with respect to the qualified status of each ITI Employee Benefit Plan that is intended to qualify under Sections 401(a) and 501(a) of the Code, (v) the most recent accountings with respect to each ITI Employee Benefit Plan funded through a trust, (vi) the most recent actuarial report of the qualified actuary of each ITI Employee Benefit Plan with respect to which actuarial valuations are conducted (vii) all closing agreements under the Employee Plans Closing Agreement Program issued by the IRS and compliance statements under the Voluntary Compliance Resolution program issued by the IRS, and (viii) in the case of stock options or stock appreciation rights issued under any ITI Employee Benefit Plans, a list of holders, date of grant, number of shares, exercise price per share and dates exercisable.
(c) Each ITI Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewith. ITI has not contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no person under common control with ITI within the meaning of Section 414 of the Code ("ERISA Affiliate") has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a liability of ITI.
(d) Each ITI Employee Benefit Plan covers only employees who are employed by ITI or a subsidiary (or former employees or beneficiaries with respect to service with ITI or a subsidiary).
(e) Neither ITI, any subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five-year period preceding the date of this Agreement, at any time contributed to or had an obligation to contribute to any "multiemployer plan," as that term is defined in Section 4001 of ERISA. Neither ITI, any subsidiary , any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, at any time during the last five-year period preceding the date hereof, withdrawn from any Multiemployer Plan or Multiple Employer Plan or incurred any withdrawal liability that has not been satisfied in full.
(f) No event has occurred, and there exists no condition or set of circumstances in connection with respect to any ITI Employee Company Benefit Plan, under which ITI Plan that could subject the Company or any subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject of its Subsidiaries to any liability arising under Section 409 of ERISAthe Code, Section 502(i) of ERISA, Title IV of ERISA or Section 4975 of the Code except for instances of non-compliance which, individually any other applicable law (including without limitation any liability to or in the aggregate, could not reasonably be expected under any such Plan or to have an ITI Material Adverse Effect.
(g) No proceeding by the Pension Benefit Guaranty Corporation (the "PBGC") )), or under any indemnity agreement to which the Company, any of its Subsidiaries or any Company ERISA Affiliate is a party, which liability, excluding liability for benefit claims and funding obligations payable in the ordinary course and liability for PBGC insurance premiums payable in the ordinary course, is reasonably likely to have a Company Material Adverse Effect. PBGC has not initiated any proceedings, and there exists no event or condition which would constitute grounds for initiation of proceedings by PBGC to terminate any ITI Employee Company Benefit Plan under Section 4042 of ERISA.
3.8.5 Except as disclosed in Section 3.8.5 of the Company Disclosure Schedule, no Company Benefit Plan that is a "welfare plan" (within the meaning of ERISA Section 3(1)) provides benefits for any retired or former employees (other than as required pursuant to ERISA Section 601).
3.8.6 The Company has made or will make available to Nipsco a true and correct copy of each collective bargaining agreement to which the Company is a party or under which the Company has obligations and, with respect to each Company Benefit Plan, as applicable (i) the current plan document (including all amendments adopted since the most recent restatement) and its most recently prepared summary plan description and all summaries of material modifications prepared since the most recent summary plan description, (ii) the annual report (IRS Form 5500 Series) including financial statements prepared for the most recent three plan years, (iii) each related trust agreement, insurance contract, annuity contract, service provider or investment management or advisory agreement (including all amendments to each such document), (iv) the most recent IRS determination letter with respect to the qualified status under Code Section 401(a) of such Plan and a copy of any application for an IRS determination letter filed since the most recent IRS determination letter was issued and (v) the actuarial reports or valuations for the most recent three plan years.
3.8.7 Except as disclosed in Section 3.8.7 of the Company Disclosure Schedule, the consummation or announcement of any transaction contemplated by this Agreement will not (either alone or upon the occurrence of any additional or further acts or events) result in any (i) payment (whether of severance pay or otherwise) becoming due from the Company or any of its Subsidiaries under any applicable Company Benefit Plans pursuant to any officer, employee, former employee, director or former director thereof or to the trustee under any "rabbi trust," "secular trust" or similar arrangement, or (ii) benefit under any Company Benefit Plan being established or becoming accelerated, vested or payable, except for a payment or benefit that would have been payable under the same terms and conditions without regard to the transactions contemplated by this Agreement.
3.8.8 Except as disclosed in Section 3.8.8 of the Company Disclosure Schedule, each Company Benefit Plan that is subject to either or both of the minimum funding requirements of ERISA Section 302 or to Title IV of ERISA has been instituted assets that, as of the date hereof, have a fair market value equal to or threatenedexceeding the present value, there is no pending or threatened legal action or investigation against or involving any ITI Employee Benefit Plans as determined by the Plan's independent enrolled actuary, of the accrued benefit obligations thereunder on a termination basis, as of the date hereof, based on the actuarial methods, tables and there is no basis for any assumptions theretofore utilized by such legal actionPlan's enrolled actuary in preparing such Plan's most recently prepared actuarial valuation report, proceeding or investigationexcept to the extent that applicable law would require the use of different actuarial assumptions if such Plan was to be terminated as of the date hereof. No amendment Company Benefit Plan subject to the minimum funding requirements of ERISA Section 302 has been adopted which would require ITI, incurred any subsidiary "accumulated funding deficiency" (within the meaning of ERISA Section 302 or ERISA Affiliate to provide security pursuant to Section 307 412 of the Code) as of the date hereof. No waiver from the minimum funding standards of Section 302 of ERISA or Section 401(a)(29) 412 of the CodeCode has been obtained, applied for or is contemplated with respect to any Company Benefit Plan.
3.8.9 Except as disclosed in Section 3.8.9 of the Company Disclosure Schedule, no Company Benefit Plan is or was at any time a "multiemployer plan" (hwithin the meaning of ERISA Section 4001(a) Neither ITI nor (3)), a multiple employer plan described in Code Section 413(c), or a "multiple employer welfare arrangement" (within the meaning of ERISA Section 3(40)); and none of the Company, any Subsidiary thereof or any Company ERISA Affiliate has incurred at any liability time within the past FIVE years been obligated to the PBGC under Section 302(c)(ii), 4062, 4063, 4064 or 4069 of ERISAcontribute to, or otherwise that has not been satisfied in full and no event or condition exists or has existed which could reasonably be expected to result had any liability with respect to, any multiemployer plan, multiple employer plan, or multiple employer welfare arrangement. The Company and its Subsidiaries have not made or incurred a "complete withdrawal" or a "partial withdrawal," as such terms are defined in ERISA Sections 4203 and 4205, from any such material liability. As of multiemployer plan at any time during the five-calendar-year period immediately preceding the date of this AgreementAgreement and the transactions contemplated by the Agreement will not, in and of themselves, give rise to such a "complete withdrawal" or "partial withdrawal." Neither the Company nor any Subsidiary has incurred or is aware of any withdrawal liability (as defined in Section 4201 of ERISA) assessed against any of them with respect to any multiemployer plan.
3.8.10 Except as disclosed in Section 3.8.10 of the Company Disclosure Schedule: (i) neither the Company nor any Subsidiary of the Company is subject to any legal, contractual, equitable or other obligation to establish as of any date any employee benefit plan of any nature, including without limitation any pension, profit sharing, welfare, post-retirement welfare, stock option, stock or cash award, nonqualified deferred compensation or executive compensation plan, policy or practice, and (ii) to the best knowledge of the Company, after review of all Company Benefit Plan documents, the Company or one or more of its Subsidiaries may, in any manner, and without the consent of any employee, beneficiary or dependent, employees' organization or other person, terminate, modify or amend any Company Benefit Plan or any other employee benefit plan, policy, program or practice (or its participation in any such Company Benefit Plan or other employee benefit plan, policy, program or practice) at any time sponsored, maintained or contributed to by the Company or any of its Subsidiaries, effective as of any date before, on or after the Effective Time except to the extent that any retroactive amendment would be prohibited by ERISA Section 204(g) or would deprive a plan participant of a benefit in which such participant has a vested right.
3.8.11 Except as disclosed in Section 3.8.11 of the Company Disclosure Schedule, (i) no event constituting a "reportable event" (within the meaning of ERISA Section 4043 of ERISA 4043(b) and the regulations issued thereunder) for which the 30-day notice requirement has not been waived by the PBGC has occurred with respect to any ITI Employee Company Benefit Plan and (ii) no liability, claim, action or litigation has been made, commenced or, to the best knowledge of the Company, threatened, by or against the Company or any of its Subsidiaries with respect to any Company Benefit Plan (other than for benefits or PBGC premiums payable in the ordinary course) that is reasonably likely to have a defined benefit plan under Section 3(35)Company Material Adverse Effect.
Appears in 1 contract
Employee Matters; ERISA. Except as set forth on Section 2.10 of the ITI Disclosure Schedule:
(a) Each "employee benefit plan" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, deferred compensation, severance, change of control, share option or other plan, policy, arrangement or agreement relating to employment, compensation or fringe benefits for employees, former employees, officers, trustees or directors of ITI the Company or any of its subsidiaries effective as of the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees or directors of ITI the Company or pursuant to which ITI the Company or any of its subsidiaries has or could reasonably be expected to have any liability (collectively, the "ITI Company Employee Benefit Plans") is listed in Section 2.10(a4.10(a) of the ITI Company Disclosure Schedule, is in material compliance with applicable law, including without limitation ERISA and the Code, and has been administered and operated in all material respects in accordance with its terms and all applicable statutes, orders or governmental rules or regulations currently in effect, including but not limited to, ERISA and the Code. Each ITI Company Employee Benefit Plan which is intended to be qualified within the meaning of Sections 401(a) and 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS") as to such qualification and, to the knowledge of ITIthe Company, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination.
(b) Complete and correct copies of the following documents have been made available to Lil Marc DGAC as of the date of this Agreement: (i) all ITI Company Employee Benefit Plans and any related trust agreements or insurance contracts, all plan amendments, service provider contracts, investment management and investment advisory agreements, (ii) the most current summary descriptions and summaries of material modifications and all other employee communications relating to each ITI Company Employee Benefit Plan subject to ERISA, (iii) the three most recent Form 5500s and Schedules thereto for each ITI Company Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS and the most recent application for determination filed with the IRS with respect to the qualified status of each ITI Company Employee Benefit Plan that is intended to qualify under Sections 401(a) and 501(a) of the Code, (v) the most recent accountings with respect to each ITI Company Employee Benefit Plan funded through a trust, (vi) the most recent actuarial report of the qualified actuary of each ITI Company Employee Benefit Plan with respect to which actuarial valuations are conducted (vii) all closing agreements under the Employee Plans Closing Agreement Program issued by the IRS and compliance statements under the Voluntary Compliance Resolution program issued by the IRS, and (viii) in the case of stock options or stock appreciation rights issued under any ITI Company Employee Benefit Plans, a list of holders, date of grant, number of shares, exercise price per share and dates exercisable.
(c) Each ITI Company Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewithwith their respective terms. ITI The Company has not contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no person under common control with ITI the Company within the meaning of Section 414 of the Code ("ERISA Affiliate") has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a material liability of ITIthe Company.
(d) Each ITI Company Employee Benefit Plan covers only employees who are employed by ITI the Company or a subsidiary (or former employees or beneficiaries with respect to service with ITI the Company or a subsidiary).
(e) Neither ITIthe Company, any subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five-year period preceding the date of this Agreement, at any time contributed to or had an obligation to contribute to any "multiemployer plan," as that term is defined in Section 4001 of ERISA. Neither ITIthe Company, any subsidiary , any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, at any time during the last five-year period preceding the date hereof, withdrawn from any Multiemployer Plan multiemployer plan or Multiple Employer Plan multiple employer plan or incurred any withdrawal liability that has not been satisfied in full.
(f) No event has occurred, and and, to the knowledge of any director or officer of the Company, there exists no condition or set of circumstances in connection with any ITI Company Employee Benefit Plan, under which ITI the Company or any subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject to any liability under Section 409 of ERISA, Section 502(i) of ERISA, Title IV of ERISA or Section 4975 of the Code except for instances of non-compliance which, individually or in the aggregate, could not reasonably be expected to have an ITI a Company Material Adverse Effect.
(g) No proceeding by the Pension Benefit Guaranty Corporation (the "PBGC") to terminate any ITI Company Employee Benefit Plans pursuant to Title IV of ERISA has been instituted or threatened, there is no pending or threatened legal action or investigation against or involving any ITI Company Employee Benefit Plans and there is no reasonable basis for any such legal action, proceeding or investigation. No amendment has been adopted which would require ITIthe Company, any subsidiary or ERISA Affiliate to provide security pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code.
(h) Neither ITI the Company nor any ERISA Affiliate has incurred any liability to the PBGC under Section 302(c)(ii), 4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and and, to the knowledge of any director or officer of the Company, no event or condition exists or has existed which could reasonably be expected to result in any such material liability. As of the date of this Agreement, no "reportable event" within the meaning of Section 4043 of ERISA has occurred with respect to any ITI Company Employee Benefit Plan that is a defined benefit plan under Section 3(35)) of ERISA.
(i) No employer securities, employer real property or other employer property is included in the assets of any Company Employee Benefit Plan.
(j) All required contributions for all periods ending on or prior to the Effective Time (excluding any amounts not yet due) have been made in full. Subject only to normal retrospective adjustments in the ordinary course, all insurance premiums, including, but not limited to, premiums to the PBGC have been paid in full with respect to each applicable Company Employee Benefit Plan for all periods ending on or prior to the Effective Time. As of the Effective Time, none of the Company Employee Benefit Plans has underfunded benefit liabilities as defined in Section 4001 of ERISA. Neither the Company nor any ERISA Affiliate has an accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, or any liability under Section 4971 of the Code. No waivers of the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA have been requested or obtained by the Company or any ERISA Affiliate.
(k) To the knowledge of any director or officer of the Company, no amounts payable under any Company Employee Benefit Plan or other agreement, contract, or arrangement will fail to be deductible for federal income tax purposes by virtue of Section 280G or Section 162(m) of the Code.
(l) There are no actions, suits or claims pending or, to the knowledge of the Company, threatened with respect to any Company Employee Benefit Plan.
(m) Participants' rights in all terminated Company Employee Benefit Plans qualified under the Code have been fully satisfied.
(n) No action, suit, grievance, arbitration or other manner of litigation or claim with respect to the assets of any Company Employee Benefit Plan (other than routine claims for benefits made in the ordinary course of plan administration for which plan administrative review procedures have not been exhausted) is pending, to the knowledge of any director or officer of the Company, threatened or imminent against or with respect to any Company Employee Benefit Plan, the Company, any ERISA Affiliate or any fiduciary as such term is defined in Section 3(21) of ERISA, including but not limited to, any action, suit, grievance, arbitration or other manner of litigation or claim regarding conduct that allegedly interferes with the attainment of rights under the Company Employee Benefit Plans and none of the stockholders, owners, the Company or any fiduciary has knowledge of any facts which could reasonably be expected to give rise to any such actions, suits, grievances, arbitration or other manner of litigation or claims with respect to any Company Employee Benefit Plan. To the best of its knowledge, the Company, its directors, officers, employees, or any fiduciary do not have any liability for the failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of such plans.
(o) The Company and its subsidiaries are parties to the collective bargaining agreements described in Section 4.10(o) of the Company Disclosure Schedule. No labor organization or group of employees of the Company or any of its subsidiaries has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or, to the knowledge of the Company, threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. There are no organizing activities, strikes, work stoppages, slowdowns, lockouts or other labor disputes pending or, to the knowledge of the Company, threatened against or involving the Company or any of its subsidiaries. There are no grievances pending or, to the knowledge of the Company, threatened, which could reasonably be expected to have a Company Material Adverse Effect. Each of the Company and its subsidiaries is in material compliance with all applicable laws and collective bargaining agreements respecting employment and employment practices, terms and conditions of employment, wages and hours and occupational safety and health. There are no arbitration proceedings arising out of or under any collective bargaining agreement pending or, to the knowledge of the Company, threatened, against the Company or any of its subsidiaries, and there are no administrative charges or court complaints against the Company or any of its subsidiaries concerning alleged employment discrimination or other employment related matters pending or, to the knowledge of the Company, threatened before the U.S. Equal Employment Opportunity Commission or any other Governmental Authority. Neither the Company nor any of its subsidiaries are in violation of the Federal Worker Adjustment and Retraining Notification Act of 1988.
Appears in 1 contract
Employee Matters; ERISA. Except as set forth on Section 2.10 of the ITI Disclosure Schedule:
(a) Each "employee benefit plan" ----------------------- (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, deferred compensation, severance, change of in control, deferred ----- compensation, share option or other written agreement, plan, policy, commitment or arrangement or agreement relating to employment, compensation employment or fringe benefits for employees, former employees, officers, trustees or directors of ITI the Company or any of its subsidiaries effective as of the date hereof or providing benefits as of the date hereof to current employees, former employees, officers, trustees or directors of ITI the Company or pursuant to which ITI the Company or any of its subsidiaries has or could reasonably be expected to have any liability (collectively, the "ITI Company Employee Benefit Plans") is listed in Section 2.10(aSchedule 4.10(a) of the ITI Company Disclosure Schedule, is in material compliance with applicable law, including without limitation ERISA and the Code, and has been administered and operated in all material respects in accordance with its terms and all applicable statutes, orders or governmental rules or regulations currently in effect, including but not limited to, ERISA and the Codeterms. Each ITI Company Employee Benefit Plan which is intended to be qualified within the meaning of Sections Section 401(a) and 501(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS") IRS as to such qualification and, to the knowledge of ITIthe Company, no event has occurred and no condition exists which could reasonably be expected to result in the revocation of, or have any adverse effect on, any such determination.
(b) Complete and correct copies of the following documents have been made available to Lil Marc Parent as of the date of this Agreement: (i) all ITI Company Employee Benefit Plans and any related trust agreements or insurance contracts, all plan amendments, service provider contracts, investment management and investment advisory agreementscontracts or funding agreement, (ii) the most current summary descriptions and summaries summary of material modifications and all other employee communications relating to of each ITI Company Employee Benefit Plan subject to ERISA, (iii) the three most recent Form 5500s and Schedules thereto for each ITI Company Employee Benefit Plan subject to such reporting, (iv) the most recent determination of the IRS and the most recent application for determination filed with the IRS with respect to the qualified status of each ITI Company Employee Benefit Plan that is intended to qualify under Sections Section 401(a) and 501(a) of the Code, (v) the most recent accountings with respect to each ITI Company Employee Benefit Plan funded through a trust, trust and (vi) the most recent actuarial report of the qualified actuary of each ITI Company Employee Benefit Plan with respect to which actuarial valuations are conducted (vii) all closing agreements under the Employee Plans Closing Agreement Program issued by the IRS and compliance statements under the Voluntary Compliance Resolution program issued by the IRS, and (viii) in the case of stock options or stock appreciation rights issued under any ITI Employee Benefit Plans, a list of holders, date of grant, number of shares, exercise price per share and dates exercisableconducted.
(c) Each ITI Company Employee Benefit Plan subject to the requirements of Section 601 of ERISA has been operated in material compliance therewith. ITI The Company has not contributed to a nonconforming group health plan (as defined in Code Section 5000(c)) and no person under common control with ITI the Company within the meaning of Section 414 of the Code ("ERISA Affiliate") has incurred a tax liability under Code Section 5000(a) that is or could reasonably be expected to be a liability of ITIthe Company.
(d) Each ITI Except as set forth in Schedule 4.10(d) of the Company Disclosure Schedule, each Company Employee Benefit Plan covers only employees who are employed by ITI the Company or a subsidiary (or former employees or beneficiaries with respect to service with ITI the Company or a subsidiary).
(e) Neither ITIExcept as set forth in Schedule 4.10(e) of the Company Disclosure Schedule, neither the Company, any subsidiary, any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, within the five-year period preceding the date of this Agreement, has at any time contributed to or had an obligation to contribute to any "multiemployer plan," as that term is defined in Section 4001 of ERISA. Neither ITI, any subsidiary , any ERISA Affiliate nor any other corporation or organization controlled by or under common control with any of the foregoing within the meaning of Section 4001 of ERISA has, at any time during the last five-year period preceding the date hereof, withdrawn from any Multiemployer Plan or Multiple Employer Plan or incurred any withdrawal liability that has not been satisfied in full.
(f) No event has occurred, and there exists no condition or set of circumstances in connection with any ITI Company Employee Benefit Plan, under which ITI the Company or any subsidiary, directly or indirectly (through any indemnification agreement or otherwise), could be subject to any liability under Section 409 of ERISA, Section 502(i) of ERISA, Title IV of ERISA or Section 4975 of the Code except for instances of non-compliance which, individually or in the aggregate, could not reasonably be expected to have an ITI a Company Material Adverse Effect.
(g) No proceeding by Neither the Company nor any ERISA Affiliate has incurred any liability to the Pension Benefit Guaranty Corporation (the "PBGC") to terminate any ITI Employee Benefit Plans pursuant to Title IV of ERISA has been instituted or threatened, there is no pending or threatened legal action or investigation against or involving any ITI Employee Benefit Plans and there is no basis for any such legal action, proceeding or investigation. No amendment has been adopted which would require ITI, any subsidiary or ERISA Affiliate to provide security pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code.
(h) Neither ITI nor any ERISA Affiliate has incurred any liability to the PBGC under Section 302(c)(ii), 4062, 4063, 4064 or 4069 of ERISA, or otherwise that has not been satisfied in full and no event or condition exists or has existed which could reasonably be expected to result in any such material liability. As of the date of this Agreement, no "reportable event" within the meaning of Section 4043 of ERISA has occurred with respect to any ITI Company Employee Benefit Plan that is a defined benefit plan under Section 3(35) of ERISA.
(h) Except as set forth in Schedule 4.10(h) of the Company Disclosure Schedule, no employer securities, employer real property or other employer property is included in the assets of any Company Employee Benefit Plan.
(i) Except as set forth in Section 4.10(i) of the Company Disclosure Schedule, full payment has been made of all material amounts which the Company or any affiliate thereof was required under the terms of Company Employee Benefit Plans to have paid as contributions to such plans on or prior to the Effective Time (excluding any amounts not yet due) and no Company Employee Benefit Plan which is subject to Part III of Subtitle B of Title I of ERISA has incurred any "accumulated funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of the Code, whether or not waived.
(j) Except as set forth in Schedule 4.10(j) of the Company Disclosure Schedule, no material amounts payable under any Company Employee Benefit Plan or other agreement, contract, or arrangement will fail to be deductible for federal income tax purposes by virtue of Section 280G or Section 162(m) of the Code. Except as set forth in Schedule 4.10(j), the transactions contemplated by this Agreement will not result in accelerated vesting or accelerated payment of benefits under any Company Employee Benefit Plan.
(k) Except as set forth in Section 4.10(k) of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries is a party to any collective bargaining agreement or other labor agreement with any union or labor organization. No labor organization or group of employees of the Company or any of its subsidiaries has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or, to the knowledge of the Company, threatened to be brought or filed, with the National Labor Relations Board or any other labor relations tribunal or authority. The Company has delivered or otherwise made available to Parent true, correct and complete copies of the collective bargaining agreements listed in Section 4.10(k) of the Company Disclosure Schedule, together with all amendments, modifications or supplements thereto. Except as set forth in Schedule 4.10(k) of the Company Disclosure Schedule, there are no organizing activities, strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances, or other labor practice charges or disputes pending or, to the knowledge of the Company, threatened against or involving the Company or any of its subsidiaries which could reasonably be expected to have a Company Material Adverse Effect. Each of the Company and its subsidiaries is in compliance with all applicable laws and collective bargaining agreements respecting employment and employment practices, terms and conditions of employment, wages and hours and occupational safety and health, except for non-compliances which in the aggregate could not reasonably be expected to have a Company Material Adverse Effect.
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